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DAVID AND
GOLIATH: The Position of the Palestinian Minor when
Prosecuted by Military Courts for Throwing Stones
in the West Bank
ABSTRACT This study examines whether the Israeli military
court system used to punish Palestinian minors
in the West Bank for throwing stones at Israeli
citizens, soldiers and their vehicles can be
considered doing so on a collective basis.
Author: Þórhildur Sunna Ævarsdottir Supervisor: Prof. Idlir Peci Final Thesis, submitted in the course of the LLM study of International Law of Human Rights and Criminal Justice provided by the University of Utrecht
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Table of Contents
I. Introduction ............................................................................................................................. 3
1. Structure ............................................................................................................................. 3
2. The Scope of the Present Study .......................................................................................... 4
3. Methodology and Sources .................................................................................................. 5
II. The Applicable International Legal Framework ................................................................... 5
1. The Status of the Territories ............................................................................................... 6
1.1. The 1907 Hague Regulations ...................................................................................... 7
1.2. The Fourth Geneva Convention .................................................................................. 8
1.3. The Missing Reversioner Theory ................................................................................ 9
1.4. Counter Arguments ................................................................................................... 12
1.5. Other Objections ....................................................................................................... 15
1.6. Human Rights Treaties and their application to the West Bank ............................... 17
2. Collective Punishment ...................................................................................................... 19
2.1. Collective Punishment under the Hague Regulations ............................................... 20
2.2. Collective Punishment under the fourth Geneva Convention ................................... 22
2.3. The Prohibition of Collective Punishment as Customary International Law ............ 22
2.4. Case Law on the Prohibition of Collective Punishment ........................................... 25
3. Conclusion ........................................................................................................................ 29
III. The Domestic Legal Framework ........................................................................................ 30
1. Article 212: A Person who throws an Object, Including a Stone… ................................ 31
2. The Military Court System ............................................................................................... 32
2.1. The Jurisdiction of the Military Courts ..................................................................... 33
2.2. The Distribution of the Military Courts .................................................................... 36
2.3. The Structure and Composition of the Courts ........................................................... 38
2.4. “Legal Experience” ................................................................................................... 39
2.5. Independence and impartiality .................................................................................. 40
2.6. The Military Court System: Some Conclusions ........................................................ 41
3. The administration of juvenile military justice ................................................................ 42
3.1. Arrest ......................................................................................................................... 43
3.2. Detention ................................................................................................................... 46
3.3. Trial ........................................................................................................................... 50
3.4. Sentencing and Appeals ............................................................................................ 53
3.5. The Administration of Juvenile Military Justice: Some Conclusions ....................... 53
IV. Analysis .............................................................................................................................. 54
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1. General Requirements ...................................................................................................... 55
2. Definition ......................................................................................................................... 55
3. Actus Reus ........................................................................................................................ 57
4. Mens Rea .......................................................................................................................... 60
5. Collective Punishment? Some Conclusions ..................................................................... 63
Annex: A map of the West Bank and Areas of Israeli Control ................................................ 65
Works Cited .............................................................................................................................. 67
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I. Introduction
The Israeli-Palestinian conflict is one of the longest conflicts in recent history. The long
duration of Israeli control over Palestinian territories provide ample material for study with
respect to the international law of armed conflict. This study examines one aspect of this
situation: the prosecution of Palestinian minors living in the West Bank in Israeli military courts
for throwing stones at Israeli citizens, soldiers and their vehicles. The aim of the study is to
determine whether the way in which this is conducted could be considered as constituting
collective punishment which is a war crime under international law. However, before such an
analysis can take place it must first be established which laws apply to the population of West
Bank and correspondingly, which laws govern the conduct of the Israeli Defence Forces
(hereafter: the IDF) when exercising jurisdiction over them.
1. Structure
The structure of this study is divided into four chapters. The first chapter is the present
Introduction. It will begin with setting out the structure of the following chapters. Consequently,
it will provide the reader with background information such as the temporal scope of the study,
the methodology employed in its conduct as well as addressing the sources used.
The Second chapter concerns some of the international laws applicable to the West Bank. It is
divided into three sections: The first will consider whether Israeli control over the West Bank
can be considered as belligerent occupation under international law. Belligerent occupation
essentially falls under the purview of international humanitarian law in two international
conventions. These are the 1907 Hague Convention respecting the Laws and Customs of War
on Land and its annex: Regulations concerning the Laws and Customs of War on Land
(hereafter: The Hague Regulations) and the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War (hereafter: The Fourth Geneva Convention).1
1 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land. The Hague, 18 October 1907; International Committee of the Red Cross.
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Consequently, the first section of the second chapter will mainly be concerned with determining
whether these conventions are applicable in the West Bank. Additionally, the section will
consider whether Israel is bound to apply human rights treaties to which it is party to the
population of the West Bank. The second Section of chapter two will elaborate on the
prohibition of collective punishment under international law. The legal development of the
prohibition will be described and international jurisprudence will be examined to give further
clarification to the present content of the prohibition. Consequently, section three of the second
chapter will offer some conclusions to the aforementioned considerations.
The third chapter of this study will examine the domestic legal framework governing the
punishment of Palestinian minors accused of stone throwing. The penal provision prohibiting
the behaviour will be described and the court system employed to punish it will receive
extensive analysis. The chapter will describe the entire process faced by Palestinian minors
beginning with their initial arrest and concluding with observations on the trials conducted to
convict them for the offence of stone throwing.
Finally, the fourth chapter will analyse whether the legal framework described in the previous
two chapters and how it is applied in practice allows for the conclusion that Palestinian minors
might be subjected to collective punishment for stone throwing in the West Bank. To this end,
the constitutive elements of the war crime of collective punishment as defined by the Special
Court of Sierra Leone will serve as a frame of reference to determine whether indications of
this practice exist within the military court system. The fourth chapter also contains the
conclusion to this study and will offer some recommendations potentially capable of
ameliorating the conditions of Palestinian minors within the juvenile military justice system.
2. The Scope of the Present Study
Palestinian minors are considered criminally responsible at the age of 12.2 Consequently, any
reference had to minors or children in the course of this study therefore refers to persons who
are at least twelve years of age and are not older than 18, the statutory age of majority in the
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention),
12 August 1949, 75 UNTS 287. 2 Israel Defense Forces Order Regarding Security Directives [Consolidated Version] (Judea and Samaria) (No.
1651), 2009 (Hereafter: Military Order 1651), Article 181 (b).
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West Bank.3 The territorial scope is limited to the West Bank but Israeli minors living in the
West Bank are also excluded from the scope of this study because they are not tried before the
military courts as a matter of policy.4 As to the temporal scope of this study, conduct described
herein largely relates to practices occurring from the year 2009 to the present. Some cited
studies will have been conducted prior to this date but care will be taken that any reference
thereto contains practices and procedures still used today.
3. Methodology and Sources
The research for this study was conducted by desk research based on extensive review of a wide
array of legal sources. Analysis of primary instruments such as The Hague Regulations, the
fourth Geneva Convention or human rights treaties will be supported by reference to
authoritative sources such as the international bodies tasked with supervising the adherence to
said conventions and with the commentary of respected legal academics. When examining the
domestic legal framework the primary source of reference will be translations of Israeli military
legislation. With respect to the application of this legislation to minors arrested for stone
throwing reference will be had to reports of international as well as domestic organisations as
well as to information provided by the Israeli government.
It should be noted at this point that while the stated purpose of this study is to analyse the
conduct of the IDF towards Palestinian minors accused of stone throwing in light of the
prohibition of collective punishment, it is not the intent of this study to imitate a court of law in
so doing. Consequently, while the elements of the crime of collective punishment will be used
as a frame of reference these are not meant to imply criminal responsibility of any individual
involved in the process.
II. The Applicable International Legal Framework
The international norm of focus of this study is the prohibition of collective punishment under
jus in bello. Said prohibition is regulated in various international and national legal instruments
3 Ibid. 4 Lior Yavne, ed. Michael Sfard, “Backyard Proceedings: The Implementation of Due Process Rights in the
Military Courts in the Occupied Territories“, Yesh Din – Volunteers for Human Rights, Tel Aviv, December
200, (hereafter: Backyard Proceedings) p. 56.
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and arguably under customary international law as well.5 However, before the content of said
prohibition can be examined under and determined under section two of this chapter, section
one will first establish whether the laws of armed conflict apply to the West Bank and if so, to
what extent. Specifically, section one will consider whether or not the laws of occupation, in
particular those enumerated in the 1907 Hague Regulations and the fourth Geneva Convention
are applicable.6 Moreover, as the present study considers the procedural rights and legal
standing of Palestinian children in the context of collective punishment, section one will also
study the applicability of human rights law to the West Bank. In particular, it will be determined
whether the State of Israel is obliged to comply with the provisions of the Convention on the
Rights of the Child (hereafter: CRC) as well as the International Covenant on Civil and Political
Rights (hereafter: ICCPR) in their administration of juvenile military justice in the West Bank.7
These conventions contain several guarantees of due process forming a useful frame of
reference with which to evaluate the quality of rules and procedures governing the arrest,
detention and trial of Palestinian minors. Thereafter, section two will address the precise content
of the prohibition of collective punishment. Consequently, the historical development of the
prohibition will be traced, considering its roots as a common tool of warfare to its emergence
as a war crime under international humanitarian law. The elements of the crime will receive
special attention and will be reviewed through the lens of international jurisprudence. Section
three will then offer some conclusions.
1. The Status of the Territories
Israeli control over the Palestinian territories has spurred a profusion of debate amongst legal
professionals both national and international. In particular, the legal status of the territories and
which international legal framework and norms apply remains obscure and hotly debated.8
5 See further discussion in sections 1.1. to 1.6. 6 See supra note 1. 7 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577, p. 3; UN General Assembly, International Covenant on Civil and Political Rights, 16
December 1966, United Nations, Treaty Series, vol. 999, p. 171
8 See amongst others: Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory,
Advisory Opinion, I. C. J. Reports 2004, p. 136; Report of the Secretary-General prepared pursuant to General
Assembly resolution ES-10/13 (To the International Court of Justice for its advisory opinion on the Wall), A/ES-
1 01248 of 24 November 2003, Annex I: Summary legal position of the Government of Israel (hereafter:
Summary legal position of the Government of Israel), paras. 3 and 4; Yoram Dinstein, ‘‘The international legal
status of the West Bank and the Gaza Strip – 1998’’, Israel Yearbook on Human Rights, Vol. 28 (1998), p. 45;
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Generally speaking, it is recognized by Israel and the international community alike that Israel
is administering the West Bank under belligerent occupation and that international norms of
humanitarian law apply.9 However, whilst Israel has accepted the applicability of the 1907
Hague Regulations to the West Bank it has disputed that the Fourth Geneva Convention relating
to the protection of Civilians in armed conflict applies.10 This is problematic because said
Convention contains extensive and up to date regulation on an occupying power´s rights and
obligations towards the occupant civilian population and is meant to supplement the very basic
provisions of the Hague Regulations in this respect.11
In terms of human rights, Israel has argued the inapplicability of human rights treaties to which
it is party, such as the International Covenant on Civil and Political Rights as well as the
Convention on the Rights of the Child, to the West Bank.12 While the international community
generally rejects the inapplicability of the aforementioned conventions, for compelling reasons,
it is incumbent to examine the position of the Israeli government more thoroughly in this respect
and to provide therewith some historical context before turning to the respective counter
arguments.
1.1. The 1907 Hague Regulations
The Hague Regulations originated in a declaration made in 1874 on the laws and customs of
war. They were annexed to Conventions adapted in two international peace conferences held in
Sharon Weill, “The Judicial Arm of the Occupation: the Israeli military courts in the Occupied Territories“,
International Review of the Red Cross, Vol. 89, no. 866, June 2007, p. 402 (hereafter: The Judicial Arm of the
Occupation); Scobbie, Iain. "EJIL: Talk! – Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status
of the West Bank and Legality of the Settlements." EJIL: Talk! - Blog of the European Journal of International
Law. Web: http://www.ejiltalk.org/justice-levys-legal-tinsel-the-recent-israeli-report-on-the-status-of-the-west-
bank-and-legality-of-the-settlements/ (hereafter: Justice Levy´s Legal Tinsel). 9 With respect to the Israeli position see: Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04
(2004) were the Israeli High Court of Justice states this unequivocally at para. 24: Concerning the views of the
International community see: Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian
Territory, para. 89. 10 Summary legal position of the Government of Israel, paras. 3 and 4. 11 Oscar Uhler, Henri Coursier, Commentary on the Geneva Conventions of 12 August 1949. Volume IV,
International Committee of the Red Cross, December 31, 1958, Art. 2, Part I: General provisions, web;
http://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&articleUNID=C5031F
972DD7E216C12563CD0051B998, (hereafter: Commentary on the Geneva Conventions) para. 1. 12 Summary legal position of the Government of Israel, para. 4; “State of Israel, Implementation of the Convention
on the Rights of the Child in Israel, Response of the State of Israel to the document titled List of issues to be taken
up in connection with the Consideration of the initial report of Israel, U.N. Doe. CRC/C/8/Add.44 (20 February
2001), (hereafter: Response of the State of Israel) p. 18.
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the Hague in 1899 and 1907 respectively.13 Both Conventions and the Regulations annexed to
them deal with the laws of land warfare as their subject matter in near identical language. Since
then, their provisions have evolved from being an international treaty in force between their
sovereign State Parties to embodying customary international laws of war binding on all states
engaged in international armed conflict.14 Their customary status has been affirmed by
international judicial bodies such as the Nüremberg International Military Tribunal and the
International Court of Justice.15 Section III of the Regulations addresses territories under the
control of a hostile army with its starting Article defining occupation:
Article 42
Territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority has
been established and can be exercised.
This Article has widely been accepted as the authoritative definition of an occupation under
international law.16 The applicability of the Hague Regulations to the West Bank is largely
uncontested and has been affirmed by the International Court of Justice as well as the Israeli
government and their Supreme Court of Justice.17
1.2. The Fourth Geneva Convention
The fourth Geneva Convention was adopted in 1949 and is aimed at the protection of civilians
in times of war and occupation.18 The Convention contains extensive guarantees aimed at
protecting civilians in armed conflict and its provisions are considered binding upon States
Parties.19
13 "Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land. The Hague, 18 October 1907" ICRC website, sourced: D. Schindler and J.
Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp.69-93.
http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=4D47F92DF3966A7EC12563CD 14 Ibid. 15 Judgment of the International Military Tribunal of Nuremberg,30 September and 1 October 1946, p. 65;
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 75. 16 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, para. 78. 17 Ibid, para. 89: As to the posisition of the State of Israel, see supra note 9. 18 Commentary on the Geneva Conventions, Art. 2, Part I: General Provsions. 19 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 89 et. seq.
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Drawing from harsh lessons of the Second World War where various pretexts were used to
argue the inapplicability of humanitarian conventions, the drafters of the fourth Geneva
Convention sought to ensure that the Convention would find application in all instances of
armed conflict between two or more signatory States. Consequently, Common Article 2 of said
Convention contains broad wording pertaining the situations in which it finds application.20
The first two paragraphs of common Article 2 read:
In addition to the provisions which shall be implemented in peace-time, the present
Convention shall apply to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties, even if the state
of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets with no armed
resistance.21
The language of the Article is representative of the growing tendency to consider these
humanitarian provisions as laws of humanity deserving of compliance on their own merit rather
than a contract between Sovereigns entered into solely for realist reasons of statesmanship.22
Indeed, the motivation behind this broad wording of Common Article 2 was inspired by the
experience of Sovereigns avoiding their obligations by refusing to recognize the legitimacy of
their enemy governments and therewith the existence of a state of war. Similarly, the wandering
legal status of territories due to capitulation or annexation have been used to justify
inobservance of certain conventions relating to conduct in warfare.23 Nevertheless, the Israeli
government has sought to argue that the language of Common Article 2 excludes the
applicability of the Convention to the West Bank. The following section will seek to explain
the reasoning behind this stance.
1.3. The Missing Reversioner Theory
20 Ibid. 21 Fourth Geneva Convention. 22 Commentary on the Geneva Conventions, Art. 2, Part I: General provsions. 23 Ibid.
10
The Israeli government has repeatedly rejected the de jure applicability of the fourth Geneva
Convention to the West Bank.24 The rationale behind this stand is quite complex and some
historical context is required to do its explanation justice. Its central premise lies in the
uncertain legal status of the territories before their occupation by Israeli forces in 1967 and a
formalistic approach to the applicability of the convention to “High Contracting Parties” as per
the Convention´s common Article 2.25
To start, as it were, from a beginning: During the First World War, in an exceptional feat of
perfidious albion, Britain had promised Palestine (then under Ottoman rule) to three political
entities, one of which was the Jewish population through the now (in)famous Balfour
Declaration.26 After the war the League of Nations endowed the United Kingdom with a
Mandate over historical Palestine which included the authority to secure there a homeland for
the Jewish people.27 Perhaps quite naturally, the indigenous population of the area was not at
all satisfied with this arrangement and widespread violence and unrest characterised the thirty
years of the Mandate´s duration.28
In 1947, Britain declared its intention to hand its Mandate over the territory over to the UN and
therewith withdraw all its forces, and followed through on this in May 1948.29 Britain did not,
as it were, leave all its affairs in order; the empire left the territory without designating its
24 See for example: Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory,
para. 90; Summary Legal Position of the Israeli Government, Annex 1; Committee on the Rights of the Child,
“Consideration of reports submitted by States parties under article 8 of the Optional Protocol to the Convention
on the Rights of the Child on the involvement of children in armed conflict - Concluding Observations: Israel“,
CRC/C/OPAC/ISR/CO/1, January 29, 2010. . 25Adam Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, The American
Journal of International Law, Vol. 84, No. 1 (Jan., 1990), pp. 44-103, p. 61. 26 Avi Schlaim, “The Balfour Declaration and its Consequences“, in Wm. Roger Louis, ed., Yet More Adventures
with Britannia: Personalities, Politics and Culture in Britain, London, I. B. Tauris, 2005, pp. 251-270, web:
http://users.ox.ac.uk/~ssfc0005/The%20Balfour%20Declaration%20and%20its%20consequences.html , para. 2.
Note: The Balfour Declaration was a brief letter in support of the Zionists written by British Foreign Secretary
James Arthur Balfour to Lord Rothschild in 1917. Inter alia it stated:
“His Majesty's Government view with favour the establishment in Palestine of a national home for the
Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being
clearly understood that nothing shall be done which may prejudice the civil and religious rights of
existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any
other country.”
Full text available at:
http://news.bbc.co.uk/2/hi/in_depth/middle_east/israel_and_the_palestinians/key_documents/1682961.stm. 27 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory,
Advisory Opinion, para. 70; The Council of the League of Nations, “The Palestine Mandate”, London, June 24,
1922, web: http://avalon.law.yale.edu/20th_century/palmanda.asp , Article 2. 28 “The Balfour Declaration and its Consequences”, para. 2. 29 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, para. 71.
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successor government.30 Meanwhile, the UN had issued General Assembly Resolution 181 (II)
which recommended the partition of the territory into two states: one Arab and one Jewish.31
Whilst Jewish authorities accepted the Plan of Partition the Arabs did not and when Israel
claimed its independence and creation in 1948 it resulted in a war between the newly founded
State and its surrounding sovereigns: Egypt, Syria, and Jordan. Subsequently, the UN demanded
a cessation of hostilities and that an armistice be entered into which culminated in several such
agreements between Israel and its neighbours. Thus, the envisioned Plan of Partition never
came to be.32
One of the armistice agreements, made in Rhodes in the spring of 1949, determined the
demarcation line between Israel and the Arab forces which since then has come to be known as
“the Green Line”.33 The agreement made clear that these lines would in no way prejudice a final
political settlement between the parties or future territorial arrangements.34 Thus it came to be
that Jordan occupied the West Bank whereas Egypt held the Gaza strip and the remainder of
historic Palestine became what today is for the most part recognised as Israel.35 In June 1967
war broke out again between Israel, Egypt, Jordan and Syria. Israel gained control of the West
Bank and Gaza when it emerged victorious after what has since then been commonly known as
the Six-day War.36
Since the status of the West Bank was unclear before the outbreak of hostilities and little has
changed in the direction of clarification to that end since, the Israeli government has refrained
from accepting the de jure applicability of the Geneva Convention and even to a varying degree,
its status as an occupied territory at all.37 On the contrary, the territory is considered to have
been under Egyptian and Jordanian occupation and Israel has maintained that by conceding the
30 “The Balfour Declaration and its Consequences”, para. 48. 31 General Assembly of the United Nations, Resolution 181 (II): “Future government of Palestine”,
A/RES/181(II), 29 November 1947. 32 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, para. 71. 33 Note: The name draws its origin from the colour used to draw the line on the map: Legal Consequences cf the
Construction of a Wa11 in the Occupied Palestinian Territory, para. 72. 34 Ibid. 35 Ibid. 36 This is somewhat a simplification: The author leaves out the fate of Jerusalem and the Golem Heights, both of
which Israel has annexed internally and yet the annexation remains unrecognized by the international
community. 37 See for example a memorandum written by the Legal Adviser of the Israeli Ministry of Foreign Affairs, Mr.
Theodor Meron to the Foreign Minister in the immediate aftermath of the six day war (1967), titled Settlement in
the administered territories, available at: http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf ,
Section B.
12
application of the Convention it would allow for the conclusion that these States were ousted
sovereigns with reversionary rights.38
Hence the ostensible inapplicability of the fourth Geneva Convention to the OT stems from
Israel´s desire not to recognize any sovereign reversionary rights to either Jordan or Egypt. It is
therefrom that the legal theory draws its name: “The Missing Reversioner Theory”.39 As Israeli
authorities maintain there was no true Sovereign over the territories and neither Egypt nor
Jordan had any claim to them, Palestine can-not be considered to be or to have been “a High
Contracting Party“, in the sense of the second paragraph of Common Article 2 of the fourth
Geneva Convention.40 However, Israel has often indicated that whilst it rejects the de jure
application of the Convention it does apply its humanitarian provisions de facto in its
administration of the territories, albeit without ever clarifying which specific provisions fall
under this category.41
1.4. Counter Arguments
Perhaps the most persuasive counter-arguments against the Missing Reversioner Theory can be
found in the Advisory Opinion on the construction of a wall in the Occupied Palestinian
Territory, made by the International Court of Justice (ICJ). The ICJ conducted an authoritative
study on the meaning of Common Article 2 and found that it did indeed include in its scope the
Occupied Palestinian Territory, irrespective of their precise status prior to the occupation.42 The
Court relied on the methods of interpretation recognised in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties (VCLT) and cited various authorities such as the travaux
preparatoirs of the Convention as well as opinio iuris and State practice to support this
conclusion.43
It bears mention of course that both Israel and the Kingdom of Jordan became party to the fourth
Geneva Convention prior to the former taking control over the West Bank by force from the
latter in 1967.44 Utilising the primary method of treaty interpretation, Article 31 of the VCLT,
38 “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, p. 64. 39 Ibid. 40 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, para. 90. 41 “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, p. 55. 42 Legal Consequences cf the Construction of a Wa11 in the Occupied Palestinian Territory, para. 101. 43 Ibid, paras. 90-101. 44 Ibid, para. 91.
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namely that “a treaty must be interpreted in good faith in accordance with the ordinary meaning
to be given to its terms in their context and in the light of its object and purpose”, the ICJ
surmised that under the first paragraph of Common Article 2, the fourth Geneva Convention
finds application when two conditions are met: Firstly, an armed conflict must exist
(irrespective of any declaration of a state of war). Secondly, this conflict must occur between
two Contracting Parties. Thus, the Convention applies if these conditions are met, specifically
also to any territory occupied in the course of the conflict.45
Contrary to the view of the Israeli government, the Court held that the wording of the second
paragraph of Common Article 2 was not meant to restrict the scope of application presented in
its first paragraph and therewith exclude territories not under sovereign control of either party.46
Rather, the wording of the second paragraph elucidates that even if said occupation meets with
no armed resistance the Convention still applies to that situation.47 To support this conclusion
the Court turned to subsidiary means of interpretation as foreseen in Article 32 of the VCLT,
citing the travaux preparatoires of the Convention to determine both the teleological and
historical meaning of the second paragraph: The drafters intended to include in its scope of
application protection of all civilians who find themselves under hostile occupation of a
Contracting Party, irrespective of the previous status of those territories.48
Further evidence for this stance is found in article 47 of the Convention which states:
Protected persons who are in occupied territory shall not be deprived, in any case or
in any manner whatsoever, of the benefits of the present Convention by any change
introduced, as the result of the occupation of a territory, into the institutions or
government of the said territory, nor by any agreement concluded between the
authorities of the occupied territories and the Occupying Power, nor by any
annexation by the latter of the whole or part of the occupied territory.
The intention of the drafters was thus not to restrict the scope of application announced in the
first paragraph of Common Article 2 through the language of the second paragraph, but rather
to widen it. This has twice been confirmed by the States parties to the Convention in statements
made which specifically hold that it applies to the Occupied Palestinian Territory.49 In addition,
45 Legal Consequences cf the Construction of a Wa11 in the Occupied Palestinian Territory, paras. 94 and 95. 46 Ibid, para. 95. 47 Ibid. 48 Ibid, paras. 95 and 101. 49 Ibid, para. 96.
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the International Commission of the Red Cross has affirmed the applicability of the convention
to the West Bank and so has the United Nations General Assembly (UNGA) and the Security
Council on multiple occasions since the beginning of the occupation.50
Moreover, Israel´s own Supreme Court of Justice has accepted the applicability of the
Convention to the West Bank although it has failed to take a firm stance on its de jure status.51
Furthermore, Military Proclamation no. 3 which establishes the military courts in the West
Bank explicitly references the applicability and in fact supremacy of the Convention to the rules
and procedures of the courts.52 However, the Proclamation´s successor Military Orders no
longer mention the Convention.53
It is regrettable that the Israeli government refuses to acknowledge the applicability of the fourth
Geneva Convention to the OT but its stance cannot be accepted. Not only does the Israeli
government´s policy stand at odds with the views of the highest international authorities, it
conflicts with its own behaviour and practice. For it is contradictory to set up military courts,
the authority for which is based in said Convention, to then deny that it actually applies to the
people the courts have jurisdiction over.54 It is unacceptable to state that the humanitarian
provisions of the Convention find de facto application without ever clarifying these provisions
and how they should in fact be applied. The inherent notion of this stance is that the Israeli
government can decide ex gratia which provisions of the Convention apply and which not
according to their preference.55 Doing so is attempting to evade legal certainty and determinism
and cannot be considered valid legal argumentation.
50 GA Resolution 56/60: “Applicability of the Geneva Convention relative to the Protection of Civilian Persons
in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including Jerusalem, and the other
occupied Arab territories”, A/RES/56/60, February 14, 2002.
GA Resolution 58/97: “Applicability of the Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including Jerusalem, and the other
occupied Arab territories”, A/RES/58/97, December 17, 2003; S/RES/237 (1967), 14 June 1967; S/RES/271
(1969) 15 September 1969; S/RES/446 (1979) of 22 March 1979;S/RES/681 (1990) of 20 December 1990;
S/RES/799 (1992) of 18 December 1992; S/RES/904 (1994) of 18 March 1994. 51 “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, p. 66. 52 Order Concerning Establishment of Military Courts (No. 3), 7 June 1967, published in Collection of
Proclamations, Orders and Appointments of the Military Commander in the West Bank Region, Israeli Defense
Forces, Article 35. 53 Those would be Military Orders 378 and 1651, discussed further in the Chapter on the national legal
framework. 54 Granted, the Military Courts were first established during the war rendering the application of the fourth
Geneva Convention unavoidable. Since the cessation of hostilities the Israeli government has since then sought
to establish the jurisdiction of the courts solely on the basis of the Hague Regulations although not referencing
these explicitly in subsequent Military Orders. Se „Prolonged Military Occupation: The Israeli-Occupied
Territories since 1967“, p. 65. 55 “Prolonged Military Occupation“, p. 66.
15
The Israeli government cannot rely on a restrictive interpretation of Common Article 2 of the
Convention as a defence, as this has repeatedly been refuted by authoritative sources such as
the ICJ. The Palestinian people are civilians which find themselves under the effective control
of a hostile army which is bound by the provisions of the fourth Geneva Convention. The
conclusion that must be reached is that the fourth Geneva Convention and all its provisions are
in fact applicable to the situation in the OT regardless of whichever status these territories might
have had before they came under Israeli occupation.
1.5. Other Objections
The Missing Reversioner Theory is by far the most prevalent theory used in an attempt to refute
the applicability of humanitarian law to the Occupied Territories but it does not stand alone.
Other arguments have been offered to support the conclusion that not all laws of occupation
apply due to the considerable length of the occupation.56 Another view holds that the West Bank
is not occupied at all.57
Recently, the Israeli government appointed a commission led by former Israeli Supreme Court
Justice Levy which concluded that the territories were not occupied by Israel in the sense of
international law but rather Israeli sovereign territory all along which, for practical reasons of
peaceful relations had simply not been utilized as such so far.58 The commission bases its
findings on similar reasoning to that of the missing reversioners, but take the argument one step
further: The Balfour Declaration and the Palestine Mandate are interpreted to have granted the
Jewish people sovereign rights over Palestine whilst only recognising cultural and religious
rights of the Arab majority.59 The armistice lines drawn in 1949 were only temporary measures
56 “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, p. 44. 57 See for example a memorandum written by the Legal Adviser of the Israeli Ministry of Foreign Affairs, Mr.
Theodor Meron to the Foreign Minister in the immediate aftermath of the six day war (1967), titled Settlement in
the administered territories, available at: http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf ,
Section B. 58 Note: The full report is only available in Hebrew: http://www.pmo.gov.il/Documents/doch090712.pdf,
however a translation of its main conclusions can be found here: Baker, Alan . "Conclusions and
recommendations of the Commission to Examine the Status of Building in Judea and Samaria - "Levy report" on
settlements /Non-UN document (13 July 2012)." UNISPAL-United Nations Information System on the Question
of Palestine. http://unispal.un.org/UNISPAL.NSF/0/D9D07; an unofficial translation of its argumentation can be
located here; "Elder of Ziyon: English translation of the legal arguments in the Levy Report (updated)." Elder of
Ziyon. http://elderofziyon.blogspot.cz/2012/07/english-translation-of-legal-arguments.html and detailed
discussion of the Commissions finding can be found here: Justice Levy’s Legal Tinsel supra note 8. 59 Ibid.
16
under the UN Charter and subsequent wars invalidated their boundaries and returned the
territories to their rightful owner and sovereign: the Israeli State.60
Although the stated purpose of founding the Commission was to seek means by which to
legalize Israeli settlements within the West Bank, so far, the government of Israel has not
officially endorsed its findings.61 Perhaps this is so because it contradicts both the extensive
case law of the Israeli Supreme Court on the matter as well as the State practice of Israel itself
since 1967.62 All authority exercised by IDF military commanders in the West Bank has been
used on the basis of the laws of occupation. Should the territory never have been occupied in
the first place all action taken there would have been illegitimate and cause for compensation
to those deprived of their property in the process.63 Also, supporting the thesis that Palestinians
only received cultural and religious rights through the British Mandate, leaving the minority
Jewish population with sovereign and political control over the indigenous population, invites
imperialist notions of racial superiority and apartheid.64 The Israeli government is sure to wish
to avoid publicly supporting conclusions based on the denial of basic human rights to an entire
population solely to legitimize its settlement policies.
Hitherto, there seems little doubt in Israeli legal circles that the West Bank is under belligerent
occupation.65 Nevertheless, Israel has often refrained from referring to the West Bank as
“occupied” preferring the less opprobrious terminology of the “administrated territory” and has
in various ways sought to distinguish it from “normal occupied territory“, inter alia by citing
the considerable duration of the situation.66 Justice Levy´s report echoes this opinion, claiming
that international laws of occupation were only meant to apply for short periods of time and not
to the situation in Israel, spanning decades and therefore being a “unique and sui generis”
situation.67
60 Ibid. 61 Ibid. 62 Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04 (2004); Gross, Aeyal . "If there are no
Palestinians, there's no Israeli occupation - Israel News | Haaretz ." Israel News - Haaretz Israeli News source.
http://www.haaretz.com/news/diplomacy-defense/if-there-are-no-palestinians-there-s-no-israeli-occupation-
1.449988. 63 Zarchin, Tomer . "Legal expert: If Israel isn't occupying West Bank, it must give up land held by IDF - Israel
News | Haaretz ." Israel News - Haaretz Israeli News source. http://www.haaretz.com/news/diplomacy-
defense/legal-expert-if-israel-isn-t-occupying-west-bank-it-must-give-up-land-held-by-idf-1.449909 64 "If there are no Palestinians, there's no Israeli occupation - Israel News | Haaretz ." 65 “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, p. 63. 66 Ibid, p. 44. 67 Justice Levy’s Legal Tinsel.
17
While the duration of occupation raises valid concerns with respect to the sustainability of some
rules of occupation aimed at preserving the status quo ante in the context of say, the economic
development of the occupied population, convincing arguments have been raised to counter the
claim that these would somehow nullify the applicability of occupation law.68 In fact, some
scholars suggest that the longer an Occupation lasts, the more stringently should its laws be
applied towards the Occupying power in favour of the occupied population.69 In any event,
there is no time limit on the laws of occupation, they apply while a territory remains occupied
in the sense of Article 42 of the Hague Regulations.70
1.6. Human Rights Treaties and their application to the West Bank
With respect to human rights treaties, Israel has denied its obligation to apply those treaties to
which it is party to the West Bank.71 Its position is based on two central arguments. Firstly, that
international humanitarian law is the applicable framework in the West Bank which excludes
the application of human rights treaties. Secondly, it is said that human rights treaties are only
meant to govern the relations of a government with its own citizens in peace time.72
Consequently, Israel has denied that it is bound to uphold the provisions of the International
Covenant on Civil and Political Rights as well as the Convention on the Rights of the Child
when dealing with the population of the West Bank.73
However, the ICJ has affirmed that human rights do not lose their applicability in times of war
but that their content must be interpreted in the light of humanitarian law which becomes lex
specialis in these circumstances.74 Some Human Rights provisions therefore give way to more
specific humanitarian legal provisions (for instance, the right to life will be interpreted by
different criteria under humanitarian law and human rights law) but do not lose their validity in
other respects (i.e. the right to life still applies nevertheless).75
68 “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967“, p. 58. 69 Ibid, p. 56. 70 Ibid, p. 54. 71 See supra note 12. 72 Ibid. 73 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, para.102. For a
general discussion on this issue see: Catherene Cook, Adam Hanieh and Adah Key, “Discrimination and Denial,
Israel and Palestinian Child Political Prisoners: A Case Study of Israel´s Manipulation of the U.N Human
Rights System, 13 Pal. Y.B. Int'l L. 91 2004-2005. 74 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, para. 105. 75 Ibid.
18
Other bodies such as the UN Human Rights Committee, tasked with interpreting the ICCPR
and considered its most authoritative source has unequivocally stated that the application of the
laws of war does not void obligations under the Covenant.76 In the same vein, the UN
Committee on the Rights of the Child, has stated that the Convention on the Rights of the Child
applies during times of conflict and specifically referred to the application of the Convention to
the West Bank in this respect.77
The other line of reasoning, that is, that Human Rights Conventions are only applicable between
a State and its citizens in peace time, has been rejected for two main reasons. In the first place,
the scope of obligation of these instruments are considered to extend to all areas where a state
exercises its jurisdiction. Moreover, a state of unrest or lack of peace is generally not considered
to void the application of these instruments.
Turning to the scope of application, the ICJ and the UN Committees mentioned above, have
all held that States are obliged to uphold the provisions of the CRC and the ICCPR in any of its
activities involving the exercise of its jurisdiction, also outside of its territorial borders. 78 This
reasoning stems from the wording of Article 2 of the respective conventions, both concerning
their scope of application and both extending said application to any area subject to the
jurisdictional powers of a State Party. The state of Israel quite evidently exercises jurisdiction
in the West Bank, for instance through the military courts used to try Palestinians.
Consequently, Israel cannot limit the application of these instruments to its own citizens. 79
On the other hand, the argument that these conventions only find application in peace time
merits further analysis, because a declared state of emergency can allow for derogation of
certain rights contained in human rights instruments. To that end, a State must declare a state
of emergency and submit a reservation to the relevant treaty regarding the rights it wishes to
76 Human Rights Committee, CCPR/C0/78/1SR, para. 11 where it stated:
"in the current circumstances, the provisions of the Covenant apply
to the benefit of the population of the Occupied Territories, for al1
conduct by the lState party's authorities or agents in those territories
that affect the enjoyment of rights enshrined in the Covenant and
fa11 within the ambit of State responsibility of Israel under the principles
of public international law" 77 Committee on the Rights of the Child, “Consideration of reports submitted by States parties under article 8 of
the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflict - Concluding Observations: Israel“, CRC/C/OPAC/ISR/CO/1, January 29, 2010. 78 Legal Consequences cf the Construction of a Wa11 in the Occupied Palestinian Territory, paras. 107-111. 79 Ibid.
19
derogate from as a result of this. In the case of Israel, a state of emergency was declared in 1967
and has not been revoked to this date.
Since its ratification of the CRC, Israel has not submitted any reservations thereto and its
provisions should therefore be considered fully applicable. As to the ICCPR, Israel invoked
Article 4 of the Convention upon its signing, which allows for derogation of certain rights
contained therein on the basis of a state of emergency. In accordance with this provision, Israel
issued a reservation to its full application of Article 9 of the Covenant which regulates
deprivation of liberty.80
Aside from the reservation concerning Article 9 of the ICCPR, Israel has not issued any further
reservations to the application of these instruments. Consequently, all other provisions found in
these instruments should be considered as fully applicable. Indeed, if the notion were to hold
true that human rights treaties are only meant to apply in peace time, it fails to explain why
Israel upholds their provisions towards Israeli citizens, evidenced by their transposition into
Israeli national law.81
Consequently, it can be stated that as a State Party to the ICCPR, Israel is obliged to adhere to
its provisions when it exercises jurisdiction over the West Bank. More specifically, the Israeli
military courts are obliged to adhere to the provisions regulating individual rights of due process
in their administration of justice within the West Bank.
2. Collective Punishment
Now that the applicability of the fourth Geneva Convention as well as the 1907 Hague
Regulations to the OT has been established it is pertinent to examine the content of the norm
which forms the frame of reference of this study: Namely, the prohibition of collective
punishment. Throughout the war torn history of Homo sapiens, armies and militias have exacted
harsh punitive measures against groups of persons for acts which were not individually
attributable to these persons.82 The aim of this behaviour is usually said to be to deter
communities from any attempt of resistance against the punishing forces.83 Collective
80 Ibid, para. 127. 81 Ibid. 82 Shane Darcy, “Prosecuting the War Crime of Collective Punishment - Is It Time to Amend the Rome
Statute?”, Journal of International Criminal Justice, 8 (2010), p. 29. 83 Ibid, p. 30.
20
punishment has been used to spread terror amongst populations which armies seek to subjugate
to their command, often under the disguise of law enforcement.84 Gradually, international law
has sought to prohibit this behaviour in warfare as it stands against one of the central premises
of the rule of law: that of individual criminal responsibility.85
The following sections will explain the content of this prohibition as laid out in international
humanitarian law. To this end the language of the prohibition laid out in The Hague Regulations
as well as the fourth Geneva Convention will be scrutinized. Moreover, whether or not the
prohibition has obtained the status of customary international law will be ascertained. Finally,
international case law on the subject will be reviewed in order to gain an understanding of the
precise definition of collective punishment as a war crime and therewith its elements of actus
reus and mens rea.
2.1. Collective Punishment under the Hague Regulations
The 1907 Hague Regulations as well as their 1899 predecessor were the first to regulate
collective punishment.86 Article 50 of the 1907 Hague Regulations provides:
No general penalty, pecuniary or otherwise, shall be inflicted upon the population on
account of the acts of individuals for which they cannot be regarded as jointly and
severally responsible.
Here, a population could be punished when acts of individuals within it could be ascribed to the
population as a whole under joint or several responsibility. Should such responsibility be
ascribed to the population however, collective punishment could be used as a response thereto.
A further elaboration on the meaning of the responsibility described was given in the travaux
preperatoires on Article 50. There it was stated that should it be determined that a certain
community as a whole committed acts or at least permitted the commission of these acts it was
permitted for an army to punish the population as a whole. Although it did not make it to the
final wording of the Article, the drafters of the Article considered the acts for which a population
84 “Prosecuting the War Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“, p.29. 85 United States of America v. Wilhelm List et al., Judgment, 19 February 1948, , in Trials of War Criminals
Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Volume XI/2, p. 1247
(Hereafter: The Hostages Case). 86 “Prosecuting the War Crime of Collective Punishment-Is It Time to Amend the Rome Statute?, p. 32.
21
could be punished should be restricted to “reprehensible or hostile acts”. 87 Consequently,
collective punishment could still be employed against a population considered at least passively
responsible for the commission of offending acts against an occupying army.88
A case in point is The Hostages Case before the International Nürenberg military tribunal
wherein it was considered how collective punishment could lawfully be used against the
population of an occupied territory. While the charges brought against the defendants did not
explicitly mention collective punishment, their first indictment charged the defendants with the
wanton murders of hundreds of innocent civilian hostages without the benefit of a fair trial
determining their individual responsibility in response to acts committed by enemy forces or
unknown persons. The case adjudicated over several high ranking German military officers
who administered Greece and Yugoslavia whilst occupied by German forces. Faced with strong
guerrilla resistance movements in these countries, the German Wehrmacht had enforced an
official policy of murdering one hundred civilians in retaliation to every death of a German
soldier caused by these movements.89
The Tribunal examined international law on the subject and found that it was lawful for an
occupying army to take hostages to ensure the peaceful conduct of populations of occupied
territory and to shoot them should the population disobey.
These measures were subject to the exhaustion of other remedies to ensure tranquillity, such as
enacting curfews, prohibiting assembly and destroying property in the vicinity of the place of
the crime. Failing these however, the Nürenberg Tribunal found that international law (i.e. the
Hague Regulations) permitted this form of collective punishment. The widespread use of
collective punishment during the Second World War was a strong impetus to prohibit the
practice completely under international law, which was accomplished in the fourth Geneva
Convention in 1949.90
87 The Proceedings of the Hague Peace Conferences, Translation of the Official Texts: The Conference of
1899, Prepared in the Division of International Law of the Carnegie Endowment for
International Peace under the supervision of James Brown Scott (NewYork: Oxford University
Press, 1920); Report to the Conference, by Edouard Rolin, Annex 1 to the Minutes of the Fifth
Meeting, 5 July 1899, p. 65(cited in “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend
the Rome Statute?“, p.32). 88 Ibid. 89 “Hostages Case“, p. 1264. 90 Commentary on the Geneva Conventions of 12 August 1949. Volume IV, Introduction.
22
2.2. Collective Punishment under the fourth Geneva Convention
Article 33 (1) of the fourth Geneva Convention offered a much more comprehensive prohibition
on collective punishment than the Hague Regulations stating:
No protected person may be punished for an offence he or she has not personally
committed.
Collective penalties and likewise all measures of intimidation or of terrorism are
prohibited.91
The wording of the article also comes closer to the raison d'être of the prohibition of collective
punishment; the ideal of individual criminal responsibility.92 The prohibition extends to the
persons protected by the convention: prisoners of war and persons living under occupation and
has since then evolved into a rule of customary international law.93
2.3. The Prohibition of Collective Punishment as Customary International Law
Since the promulgation of the fourth Geneva Convention, the prohibition has evolved into a
customary norm of international law. Not only has the norm been reaffirmed through various
international legislative instruments, it has also found its way into national legislation and
military manuals across the globe.94 The following section will review these instruments and
offer comments on the crystallisation of the rule into international customary law.
2.3.1. Subsequent International Legislation
91 1949 Geneva Convention IV. 92 Paul Rabbat and Sigrid Mehring, “Collective Punishment”, Max Planck Institute for Comparative Public Law
and International Law, Heidelberg and Oxford University Press, 2013, para. 2. 93 “Collective Punishment“, para. 10; Henckaerts, Louise Doswald-Beck, Customary International
Humanitarian Law,(Online version) Cambridge University Press, Book DOI:
http://dx.doi.org/10.1017/CBO9780511804700, p. 374. 94 Customary International Humanitarian Law, p. 375; International Committee for the Red Cross, “Practice
Relating to Rule 103. Collective Punishments“, Chapters III: Military Manuals and IV: National Legislation,
web: http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule103#top, the countries listed are to many to
enumerate here but include multiple representatives from all inhabited continents and the permanent members of
the Security Council.
23
Collective punishment has been prohibited in various international instruments, amongst them
the Convention Relative to the Treatment of Prisoners of War (1929), the third Geneva
Convention as well as in Additional Protocol I and II to the Geneva Conventions.95 The Statute
for the International Criminal Tribunal for Rwanda (ICTR) was the first to extend the
jurisdiction of an international tribunal explicitly to the war crime of collective punishment.
Special Court for Sierra Leone (SCSL) followed suit and included the crime of collective
punishment in its statute.96 While the prohibition of collective punishment was included with
the war crimes listed in the draft Statutes of the International Criminal Court it did not find
acceptance in the final version thereof.97
Nevertheless, various international institutions have issued the opinion that collective
punishment is a war crime which should incur individual criminal responsibility. Already in the
wake of the First World War, the Commission on Responsibility of the Authors of War and on
Enforcement of Penalties included collective punishment in its list of violations of the laws and
customs of war which should be subject to criminal prosecution.98
Since then, many other declarations and instruments have followed suit. A case in point is the
1991 ILC Draft Code of Crimes against the Peace and Security of Mankind and its 1996
successor document; both list collective punishment as a war crime.99 Parties to the Balkan
95 Convention relative to the Treatment of Prisoners of War (signed 27 July 1929, entered into force 19 June
1931) 118 LNTS 343(Art. 46 (4)); Geneva Convention relative to the Treatment of Prisoners of War (adopted 12
August 1949, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III) (Arts. 26 (6) and 87
(3)); Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,
entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV) (Art. 33 (1)); Protocol Additional to
the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125
UNTS 3 (Art. 75 (2)d); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into
force 7 December 1978) 1125 UNTS (Art. 4(2)b).
609. 96 “Prosecuting the War Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“, p. 34; Statute
of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other
Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda, UN Doc.
S/Res/955 (1994) (Art. 4(b)); Statute of the Special Court for Sierra Leone, having been established by an
Agreement between the United Nations and the Government of Sierra Leone pursuant to
Security Council Resolution 1315 (2000) of 14 August 2000 (Art. 3(b)). 97 “Observance by the United Nations Forces of International Humanitarian Law”, Secretary General´s Bulletin,
UN Secretariat, UN Doc. ST/SGB/1999/13, August 6, 1999, Section 7.2; ICRC, Working Paper on war crimes
submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York,
February 14, 1997, Arts. 1 (ii)-(iii) and 3 (1). See further cit. 100 below. 98 Violations of the Laws and Customs ofWar: Reports of the Majority and Dissenting Reports of
American and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919,
at 16^19, 44 (cited in“Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome
Statute?“, p. 38). 99 See Art. 22, - 2(a) of the Draft Code of Crimes against the Peace and Security of Mankind,
Report of the Commission to the General Assembly on the work of its forty-third session (1991), Vol.
24
conflict issued Memoranda of Understanding that collective punishment would not be exacted
against civilians caught in the conflict.100 In addition, the UN has issued various declarations
and resolutions which stress the importance of member states respecting this norm, most of
which, incidentally, have been addressed to the State of Israel.101
2.3.2. National legislation concerning collective punishment
The military manuals of armies across the globe expressly prohibit the use of collective
punishment in the conduct of hostilities such as occupation of territory. The list of countries is
diverse and although the detail with which the prohibition is described varies, the concept itself
seems universally accepted by armies small and large. Countries such as Canada, The United
States of America, Argentina, France, The United Kingdom, Spain, Sweeden, Russia,
Nicaragua, Peru and, most relevantly, Israel, all prohibit the use of collective punishment in
occupation situations.102 In the same way, the national criminal legislation of a large number of
States prescribes the act of subjecting protected persons to collective punishment as a war crime
subject to individual criminal responsibility of the accused. There is therefore little doubt that
collective punishment is near universally proscribed by national legislation, further
strengthening its prohibition as a norm of customary international law.103
II, Part 2, Yearbook of the International Law Commission, UN Doc. A/CN.4/SER.A/1991/Add.1
(Part 2), pp. 104-105; Report of the Commission on the work of its forty-eighth session (1996), Vol.
II, Part 2, Yearbook of the International Law Commission, UN Doc. A/CN.4/SER.A/1996/Add.1
(Part 2), pp. 53-54, Art. 20, - (f)(ii). 100 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal
Republic of Yugoslavia, Geneva, November 27, 1991, para. 4; Agreement between Representatives of Mr. Alija
Izetbegovic (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic
Action), Representatives of Mr. Radovan Karadzic (President of the Serbian Democratic Party), and
Representative of Mr. Miljenko Brkic (President of the Croation Democratic Community), Geneva, May 22,
1992, para. 2.3. 101 See for example: UNGA ‘Report of the Secretary General Prepared Pursuant to General Assembly
Resolution ES-10/13’ (24 November 2003) UN Doc A/ES-10/248; UNGA Res 64/91 ‘Work of the Special
Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs
of the Occupied Territories’ (19 January 2010) GAOR 64th Session Supp 49vol 1, 312; UNGA Res 64/94
‘Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory,
including East Jerusalem’ (19 January 2010) GAOR 64th Session Supp 49 vol 1, 335; UN HR Council ‘Human
Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on
the Gaza Conflict’ (25 September 2009) UN Doc A/HRC/12/48 (Goldstone Report). 102 See supra note 94. 103 Customary International Humanitarian Law, p. 375.
25
2.4. Case Law on the Prohibition of Collective Punishment
Whereas the customary status of the prohibition of collective punishment has been established,
the precise content of the prohibition remains to be determined. It is imperative to ascertain how
the rule translates into a war crime liable to individual criminal responsibility. To that end, the
case law of the Special Court for Sierra Leone offers particularly pertinent guidance as it is the
only international tribunal to have convicted persons for the act of collective punishment.104
Other courts, such as the military tribunal in the case United States v First Lieutenant William
L Calley Jr, the Military Tribunal of Rome in its judgment of In Re Priebke of 22 July 1997
and the International Tribunal for the former Yugoslavia (ICTY) (more generally) in the Delalić
Case, addressed the prohibition but none were convicted for the offence.105 Although no one
was convicted for committing collective punishment in the Nüremberg trials, Article 50 was
expressly mentioned as a punishable war crime in Court transcripts.106
Basing its jurisdiction on Article 3 (b) of the SCSL Statute, the SCSL issued indictments for
collective punishment in near all of its cases.107 Its three most prominent cases, namely
Prosecutor v Fofana and Kondewa (Civil Defence Forces (CDF) cases), Prosecutor v Sesay,
Kallonand Gbao (Revolutionary United Front (RUF) cases), and Prosecutor v Brima, Kamara
and Kanu (Armed Forces Revolutionary Council (AFRC) cases), the large majority of
defendants were also found guilty of the crime (but revoked in appellate proceedings)108. The
following section will examine the definition of the elements of collective punishment in the
jurisprudence of the SCSL.
104 Ibid, para. 9. 105 United States v First Lieutenant William L Calley Jr (1973) 46 CMR 1131; In Re Priebke (Judgment)
Tribunale Militare di Roma (Military Tribunal of Rome) (22 July 1997) (1998) 38 Cassazione penale 689;
Prosecutor v Delalić (Judgment) IT-96-21 (16 November 1998), para. 578; “Collective Punishment“, para. 9. 106 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, reprinted
in 41 AJIL (1947) 172, p. 248; United States of America v.Wilhelm List et al., Judgment, 19 February 1948,
Case No. 7, XI Trials of War Criminals before the Nuernberg Military Tribunals under Control Council
Law No.10 (1950) 757, p. 1239 (cited in “Prosecuting theWar Crime of Collective Punishment-Is It Time to
Amend the Rome Statute, p. 38). 107 “Collective Punishment“, para. 9. 108 Judgment, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber I, 2 August 2007, (hereinafter,
CDF Trial Judgment);Prosecutor v Fofana and Kondewa (Appeals Chamber Judgment) SCSL-04-14-A (28 May
2008);Prosecutor v Sesay, Kal lon and Gbao (Trial Chamber Judgment) SCSL-04-15-T (2 March 2009)
(hereinafter, RUF Trial Judgment); Judgment, Brima, Kamara and Kanu (SCSL-2004-16-A), Appeals Chamber,
22 February 2008; Fofana and Kondewa (SCSL-04-14-A), Appeals Chamber, 28 May 2008 (hereinafter CDF
Appeal Judgment).
26
2.4.1. The Elements of Collective Punishment as a War Crime
As the Statute of the SCSL does not define the elements of the crime, the Court had to devise
its own interpretation of the scope and meaning thereof.109 Criticism has been raised that the
language used to this end in the indictments and judgments issued is imprecise and ambiguous
which is not without its merit.110 Nevertheless, the SCSL has developed extensive jurisprudence
on the subject and the appellate judgments offer an authoritative definition of this crime which
has eluded international justice thus far.111
In the indictments issued, defendants who were members of several militant groups (the AFRC,
RUF and CDF) were charged with committing various crimes in order to punish the civilian
population for supporting or failing to support one or more of the other militant groups involved
in the civil war.112 AFRC members as well as members of the RUF punished civilians ostensibly
supporting President Ahmend Tejan Kabba´s government and associated fractions, or for their
failure to support the AFRC/RUF.113 Similarly, indictments against the members of the CDF
maintained that these had through various criminal acts sought to punish civilians for their
allegiance to the AFRC/RUF forces or support thereof.114
2.4.2. General Requirements
The acts must occur in the course of an armed conflict, either international or internal, against
persons who take no active part in the hostilities.115 As the SCSL dealt exclusively with an
armed conflict, it did not include the other possible requirement to invoke the prohibition of
109 “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“ p. 40. 110 Ibid; Sandesh Sivakumaran, “War Crimes before the Special Court for Sierra Leone: Child Soldiers,
Hostages, Peacekeepers and Collective Punishments“, Journal of International Criminal Justice vol. 8 (2010),
1009-1034, pp. 1022-1023. 111 , “War Crimes before the Special Court for Sierra Leone: Child Soldiers, Hostages, Peacekeepers and
Collective Punishments“, p. 1023. 112 “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“, p. 41. 113 Further Amended Consolidated Indictment, Brima, Kamara and Kanu (SCSL-2004-16-PT), 18
February 2005, para. 41; Amended Consolidated Indictment, Sesay, Kallon and Gbao (SCSL-2004-PT), 13 May
2004, para. 42. 114 Indictment, Norman, Fofana and Kondewa (SCSL-03-14-I), 4 February 2004, para. 28, Count 7. 115 Decision on Motion for Judgment of Acquittal pursuant to Article 98, Norman, Fofana and
Kondewa (SCSL-04-14-T), Trial Chamber 1, 21 October 2005, x 116 (hereinafter, CDF Rule 98
Decision) paras. 68-70.
27
collective punishment. That is to say, the use of collective punishment is also prohibited when
it is committed in the course of occupation against the occupant civilian population.116
2.4.3. The Different Variations Offered as Elements of the Crime
The Trial Chamber in the CDF Case offered two constituent elements for the crime of collective
punishment:
(i) A punishment imposed on protected persons for acts that they have not committed
(ii) The intent, on the part of the offender, to punish the protected persons or group of
protected persons for acts which form the subject of the punishment.117
After a rather more detailed discussion on the origins and elements of the crime of collective
punishment, the Trial Chamber in the AFRC Case offered a different definition:
(i) A punishment imposed indiscriminately and collectively upon persons for acts that
they have not committed and
(ii) The intent on the part of the perpetrator to indiscriminately and collectively punish
the persons for acts which form the subject of the punishment.118
The Trial Chamber went on to state that the prohibition of collective punishment is “based on
one of the most basic tenets of criminal law, the principle of individual responsibility”.119 The
first element was thus considered to address punishments which are inflicted upon persons not
due to their individual responsibility for certain acts but rather, “by wrongfully ascribing
collective guilt to them”.120 The punishments issued would be imposed “indiscriminately
without establishing individual responsibility through some semblance of due process and
without any real attempt to identify the perpetrators if any“.121
However, this legal reasoning was not entirely to the liking of the Appeals Chamber which held
that the Trial Chamber had erred in law in its definition of the offence.122 In particular, the
116 “Collective Punishment”, para. 1. 117 CDF Rule 98 Decision, para. 118. 118 AFRC Trial Judgment, para. 676. 119 Ibid, paras. 678-680. 120 Ibid. 121 Ibid. 122 Judgment, Fofana and Kondewa (SCSL-04-14-A), Appeals Chamber, 28 May 2008, para. 222 (hereinafter,
28
Appellate Court felt that the first instance Court had not fully distinguished the crime of
collective punishment from that of targeting civilians.123 Both acts were war crimes but
collective punishment differed from targeting civilians in so far that its mens rea element
necessitates that the perpetrators act against civilians in response to acts or omissions either real
or perceived. In contrast, targeting of protected persons occurs due to the identity or perceived
identity of the victims, such as belonging to a certain tribe or village.124
Consequently, the Appellate Court in the CDF Case offered yet another definition of the
elements of the crime of collective punishment, one which found support in subsequent
appellate proceedings and can therefore be considered its final authoritative interpretation
thereof.125
It holds that collective punishment is:
(i) The indiscriminate punishment imposed collectively on persons for omissions or
acts for which some or none of them may or may not have been responsible and
(ii) The specific intent of the perpetrator to punish collectively.126
While all versions are of considerable merit they are also worthy of the aforementioned
criticism which has arisen since their publication. Most notably the Appellate Chamber is
chastised for failing to require an offending act of some kind must have occurred which then is
subject to punishment. This is considered to run afoul of the central tenet of the prohibition:
That persons or groups of persons are being punished for the acts of another.127
Moreover, the facts of the prosecuted cases are alleged not to fully fit the description of
collective punishment. Killing or punishing whole villages or groups of persons for acts or
omissions described mainly as their political affiliations or support definitely constitutes a war
CDF Appeal Judgment). 123 Ibid, para. 223. 124 Ibid. 125 , “War Crimes before the Special Court for Sierra Leone: Child Soldiers, Hostages, Peacekeepers and
Collective Punishments“, p. 1021. 126 CDF Trial Judgment, para. 224; In the same case Justice Winter, departed from this, preferring to define the
elements
as:
(1) An indiscriminate sanction directed against protected persons for their perceived conduct;
and,
(2) The specific intent to punish persons or groups of persons collectively for their perceived
Conduct.
Partially Dissenting Opinion of Honorable Justice Renate Winter, para. 46. 127 “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“ pp. 44-45.
29
crime but not necessarily one of collective punishment.128 No specific acts or offences
attributable to individuals for which the community was punished were listed in the SCSL
jurisprudence.129 Conversely, the community as a whole is penalised for its support or lack
thereof to specific actors of the civil war.130 A group- or mass-punishment incurred as a result
of inaction or omission does indeed appear to render the concept of collective punishment a
misnomer.131
The critics are right to point this out, illustrating also the difficulties of translating humanitarian
law into the much more precise definition of a war crime with its requirements of legal
certainty.132 Regrettably, collective punishment was not included in Article 8 of the Rome
Statute which would have endowed the prohibition with considerably more clarity and authority
under international criminal law.133 Nevertheless, its prohibition under customary international
law is unequivocal and the rulings of the SCSL have only served to enrich the ground upon
which said prohibition is based.134
3. Conclusion
The foregoing chapter has addressed various international legal issues relative to the subject
matter of this study. First, the applicability of international humanitarian law to the West Bank,
in particular the 1907 Hague Regulation and the 1949 fourth Geneva Convention and their rules
on belligerent occupation were established. The objection of the Israeli government to the de
jure applicability of the fourth Geneva Convention was refuted in light of insurmountable
evidence to the contrary and in so doing, the history and nature of the precise legal status of the
West Bank prior to and after its occupation by the IDF was examined. After expelling the myth
of the Missing Reversioner, this study turned its focus on the applicability of the ICCPR and
the CRC to Israel when exercising its jurisdiction in the West Bank.
128 Ibid. 129 Ibid. 130 Ibid. 131 Ibid: “War Crimes before the Special Court for Sierra Leone: Child Soldiers, Hostages, Peacekeepers and
Collective Punishments“, p. 1021 132 “Collective Punishment”, para. 9. 133 Ibid. 134 , “War Crimes before the Special Court for Sierra Leone: Child Soldiers, Hostages, Peacekeepers and
Collective Punishments“, p. 1023.
30
Once it had been established that these instruments are in fact applicable, this chapter focused
on the development of one specific rule of international humanitarian law: the prohibition of
collective punishment. The examination began with its debut appearance of conditional censure
in the Hague Regulations, moving on to its absolute prohibition in the Geneva Conventions and
eventually towards its crystallisation as a customary norm of international law. Its
transformation into a war crime subject to individual criminal responsibility was also recounted,
mainly through the lens of the jurisprudence of the SCSL.
III. The Domestic Legal Framework
When Palestinian minors are suspected of throwing stones at Israeli citizens, soldiers or their
property they are processed by military courts established by the Israeli armed forces.135 This
chapter will examine the mechanism governing the punishment of Palestinian minors accused
of the crime of throwing stones in the West Bank. To that end, the penal provision proscribing
this behaviour will be examined along with the laws and procedures governing the treatment of
minors suspected of this behaviour and how these find application in practice.
Military Order no. 1651 Regarding Security Directives in Judea and Samaria (hereafter Military
Order 1651), is the legal instrument governing the processing of minors accused of stone
throwing. The order serves as the primary penal code of the West Bank and regulates the
jurisdiction of the military courts as well as their structure and composition. 136 It contains a
list of offences as well as the procedural rules governing the arrest, detention, interrogation,
trial and sentencing of persons accused of said offences. The novelty of Military Order 1651
lies in its introduction of juvenile military courts and some specific procedures in relation to
minors.137
The first point of departure will be to introduce the crime of stone throwing proscribed under
Article 212 of Military Order 1651. Consequently the military court system will be examined:
135 Naama Baumgarten-Sharon, “No Minor Matter – Violation of the Rights of Palestinian Minors Arrested by
Israel on Suspicion of Stone Throwing“, Report prepared by B´Tselem, The Israeli Information Center for
Human Rights in the Occupied Territories, July 2011, p. 6. 136 Israel Defense Forces Order Regarding Security Directives [Consolidated Version] (Judea and Samaria) (No.
1651), 2009 (hereafter: Military Order 1651). 137 Military Order 1651, Section G, as to criticism to this novelty see: UN Committee against Torture,
Concluding Observations (20), CAT/C/ISR/CO/4, para. 28. “Bound, Blindfolded and Convicted-Children in
Military Detention“, p. 17.
31
The extent of their jurisdictional authority will be addressed before turning to their composition
and structure. Thereafter, the procedural rules governing the arrest, detention and trial of minors
will be scrutinized and examples of their practical enforcement will be given to determine
whether they contain sufficient safeguards to protect the rights of minors throughout the
proceedings ensuring that conviction only occur as a result of the individual criminal
responsibility of the accused. To this end, when examining the legal processing minor suspects
beginning with their initial arrest to their conviction, provisions of the ICCPR and the CRC will
serve as a frame of reference to determine the level of commitment to the due process rights of
the accused.. Finally, some conclusions on how well this system is equipped to ensure that the
due process rights of minors are respected at all stages of the proceedings.
1. Article 212: A Person who throws an Object, Including a Stone…
Under Article 212 of Military Order 1651, “a person who throws an object, including a stone”
is liable to serve up to twenty years in prison depending on their manner of execution. Should
they do so in a manner that “harms or may harm traffic in a transportation lane”, strict liability
applies and the perpetrator could face up to ten years imprisonment.138 A person who throws a
stone or an object at a person or property with the intention of harming either is liable to ten
years imprisonment. If the stone or object is directed at a moving vehicle and the person
throwing it intends to harm the vehicle or the person traveling in it, the punishment is twenty
years imprisonment.139
While they are not the only group residing in the West Bank who throw stones at people or
property, Palestinian minors, especially teenage boys are the most frequent perpetrators.
Correspondingly, stone throwing is also the conduct for which minors most often stand trial in
the military courts.140 In the years 2005 to 2010 alone, over 800 minors where prosecuted for
this offence.141 The throwing of objects, especially stones as defined by Article 212 is very
138 Military Order 1651, Article 212. 139 Ibid. 140 Children in Israeli Military Detention-Observations and Recommendations, UNICEF, February 2013.
p. 8; “Children in Military Custody, A report written by a delegation of British lawyers on the treatment of
Palestinian children under Israeli military law, Foreign & Commonwealth Office, June 2012 Para. 23; “Bound.
Blindfolded and Convicted”, p. 17. 141 “No Minor Matter”, p. 5.
32
common in the West Bank with over two thousand incidents reported to the IDF each year.142
Stone throwing can be dangerous to the lives of the persons subjected to it and is also the cause
of considerable material damage.143
Containing the problem is somewhat challenging as apprehending the actual perpetrators for a
specific occurrence of stone throwing can prove exceedingly difficult.144 This is mainly due to
the spontaneous nature of the offence and the circumstances under which they often take
place.145 Usually, incidents occur at locations where Palestinians come into contact with settlers
and soldiers: at traffic arteries frequented by soldiers and settlers, in demonstrations controlled
by security forces and in the proximity of the Separation Barrier.146
It is understandable that the IDF would wish to apprehend and punish stone throwers to deter
future occurrences and to protect the security of its citizens and soldiers. However, security
considerations combined with the difficulty of apprehending offenders can-not be used by the
authorities as justification for arbitrarily punishing a member of the group most often
responsible for such behaviour, in this case a Palestinian minors. Ensuring effective procedural
safeguards to accused persons becomes particularly relevant in the circumstances in the present
case: a situation of prolonged military occupation, often characterised by mutual mistrust and
hostile interaction of two peoples in conflict. A trial conducted by an independent and impartial
tribunal governed by the rule of law providing for basic procedural safeguards of the accused
during all stages of the process is the most effective way of ensuring that only those individually
criminally responsible for stone throwing be punished therefore.
2. The Military Court System
The military court system was officially established by Military Proclamation No. 3 in 1967
and was further developed through Military Order 378, which most recently has been replaced
by Military Order 1651.147 The Order regulates the widespread jurisdiction of the courts over a
142 “No Minor Matter“, p. 5. 143 “No Minor Matter”- Official response of the Military Courts to the Report of B´Tselem: p. 69. 144 Ibid, - Official responce of the Military Prosecutor´s Office, p. 72, para. 1. 145 Ibid. 146 “No Minor Matter”, p. 5. 147 Order Concerning Establishment of Military Courts (No. 3), 7 June 1967, published in Collection of
Proclamations, Orders and Appointments of the Military Commander in the West Bank Region, Israeli Defense
Forces No. 1, p. 25; "An Order Concerning Security Provisions" (Yehuda and Shomron) No. 378, 5730 – 1970;
Israel Defense Forces Order Regarding Security Directives [Consolidated Version] (Judea and Samaria) (No.
33
large number of offences.148 Since their inception, the military courts have tried hundreds of
thousands of Palestinians on the basis of these military orders and amongst them, tens of
thousands of children.149 The following sections will examine the jurisdictional authority of
these courts as well as their structure and composition.
2.1. The Jurisdiction of the Military Courts
Article ten of Military Order 1651 (titled in the English translation as Authority) governs the
jurisdiction of the military courts. Subsection A thereof gives the courts authority to “adjudicate
any offence defined in security legislation and law”. 150 Subsection B states:
(B) If the defendant is found guilty of an offence according to the law, the military
court is authorized to sentence him to punishment, not to exceed the punishment that a
lawfully convened court is authorized to impose upon him in the same case, and this is
where there is no other provision in the security legislation.
The language of subsection B is somewhat ambiguous, perhaps simply due to an issue of
translation. However its meaning becomes clearer when read in conjunction with paragraph C
which holds:
(C) In regard to Subsection (B), the same applies:
(1) if the offense was committed prior to the entry of IDF forces into the region or
after it:
(2) if authority for adjudication was assigned to a special court or tribunal.
1651), 2009; “The Israeli Military Court System in the West Bank and Gaza”, p. 206; Sharon Weill, “The
Judicial Arm of the Occupation: the Israeli military courts in the Occupied Territories“, International Review of
the Red Cross, Vol. 89, no. 866, June 2007, p. 396. 148 “The Judicial Arm of the Occupation: the Israeli military courts in the Occupied Territories“, p. 409. Further
discussion follows in section 2.1. 149 Human Rights Situation in Palestine and Other Occupied Arab Territories: Report of the
Special Rapporteur fon the Situation of Human Rights in the Palestinian territories occupied
since 1967, John Dugard, A/HRC/7/17, 21 January 2008, para. 45; Lisa Hajjar, Courting Conflict: The Military
Court System in the West Bank and Gaza, University of California Press, Berkeley, 2005, p. 3; “Bound,
Blindfolded and Convicted-Children in Military Detention“, p. 23. In 2007, the total number of trials was
estimated at over 200.000 cases, see: “The judicial arm of the occupation: the Israeli military courts in the
occupied territories”, p. 395. 150 Military Order 1651, Article 10 (A).
34
Read in conjunction, the subsections afford the military courts extensive jurisdiction over
offenses in the area allowing it to overtake the functions and jurisdiction of “lawfully convened”
courts or specially assigned courts or tribunals regardless of whether the offending behaviour
took place before or after the entry of IDF forces into the region. The following subsection D
grants the military courts the right assume the role of local courts for all offences subject to
their jurisdiction.
Regarding areas outside of the direct control of the IDF, subsections E to G of Article 10
concern the extraterritorial jurisdiction of the military courts in relation to Area A (territory
within the West Bank officially considered to lie outside the jurisdiction of Israeli forces) and
the world at large. These provisions authorize the adjudication of offenses mentioned in
Subsection A over any person suspected of committing a criminal act “which harmed or was
intended to harm the security of the region”.151 These provisions combined with the widespread
application of other methods of assuming both territorial and extraterritorial jurisdiction (for
example, the protective principle and by requiring only that an offence be only partially
committed in the region to assume territorial jurisdiction) would appear to invest almost
unlimited jurisdictional authority to the military courts.152
Reading Article 10 as a whole, the military courts thus have authority to adjudicate all persons
suspected of behaviour contrary to any law or security legislation applicable in the area prior to
and after the entry of IDF forces into the West Bank if these acts harmed or were held to be
intended to harm the security of the region. The Order contains no clarification as to which
criminal acts can be considered to be intended to harm the security of the region. As stone
throwing is considered a security offence, the jurisdiction of the military courts consequently
also covers incidents of stone throwing within Area A.153
Deliberating the full implications of this almost all-encompassing jurisdiction of the military
courts lies outside the scope of this study. However, certain issues certainly deserve mention
at this point: the jurisdictional provisions of Military Order 1651 of the courts appear not to be
restrained by the prohibition of retroactive legislation nor for that matter the prohibition of
analogy.154 This is obvious in the language of subsections A to C of its Article 10. Moreover,
151 Subsection E pertains to acts committed outside the region which would be considered an offence if
commited in the region and harmed or was intended to harm the security of the region or public order, whilst
Subsection F subjects inhabitants of Area A to identical conditions for the institution of the jurisdiction of the
Courts but suspends with the public order intent requirement. 152 For furhter consideration on this subject see “The Judicial Arm of the Occupation“ supra note 8. 153 This is defined in the Annex to Military Order 1651, cited in “No Minor Matter“, p. 6. 154 As prohibited for instance in Articles 14 and 15 of the ICCPR.
35
the extraterritorial jurisdiction exercised toward the inhabitants of Area A contravenes a binding
legal agreement between the State of Israel and the Palestinian Authority which gave full
jurisdictional authority to the latter.155
The military courts have jurisdiction both territorial and extraterritorial over offences contained
in security legislation enacted by the IDF. Moreover, their jurisdiction has been expanded to try
other delicts of a purely criminal nature as well as minor offences such as traffic violations.156
In fact, roughly half of the caseload of the military courts consist of minor offences unrelated
to the security of the Israeli forces.157 This arrangement stands at odds with Articles 64 and 66
of the fourth Geneva Convention requiring that unless prevented by security imperatives or
major deficiencies in the national judicial institutions, persons living under occupation should
continue to be judged by their own nationals for offences committed.158
While jurisdictional rules might be considered technical issues they retain fundamental
importance in ensuring a fair trial.159 An adjudication otherwise strictly adhering to
international rules of a fair trial can nevertheless violate the rights of the accused when judges
decide to apply a law exceeding its authority.160 Failing respect for jurisdictional limits, a legal
system may lose its viability as one tasked with regulating justice and emerge as a tool for
legitimating domination and punishment disguised as the rule of law.161
These issues would seem to cast in question the very legal system used to try Palestinian minors
suspected of throwing stones. A court system with apparently unrestricted jurisdictional
authority cannot be seen as fully legitimate.162 Certainly not when measured against the
provisions of international humanitarian law which severely restricts the jurisdictional authority
of these courts.163 Nevertheless, as these courts are responsible for administering justice over
Palestinian minors it is pertinent to examine the content of the rules by which they are governed.
155 “The Judicial Arm of the Occupation“, p. 403: The Agreement in question is the Israeli-Palestinian Interim
Agreement on the West Bank and the Gaza Strip, Washington DC, September 28, 1995, Article XIII, Section 1
thereof gives full jurisdictional authority to the Palestinian Authority. 156 “Backyard Proceedings“ pp. 45-47. 157 Ibid. 158 The Fourth Geneva Convention: for further discussion see: Commentary to the fourth Geneva Convention,
Articles 64 and 66 and “Backyard Proceedings“ pp. 41-45. 159 “The Judicial Arm of the Occupation: the Israeli Military Courts in the Occupied Territories”, p. 397. 160 “The Judicial Arm of the Occupation“, p. 403 161 Ibid. 162 “Backyard Proceedings“, pp. 31 et seq. 163 Ibid.
36
2.2. The Distribution of the Military Courts
The number and location of the military courts in the West Bank has varied throughout the
years of the occupation in line with political and security related developments.164 Currently,
two courts of first instance and one appellate court are operational to try Palestinians, including
children from the West Bank, for those offences under their jurisdiction.165 The Israeli Supreme
Court can be petitioned as a last instance court on a limited number of legal issues, then serving
as the High Court of Justice.166
Defendants residing in the northern part of the West Bank are tried by the Military Court of
Samaria, located in a military base in the vicinity of Salem village.167 Defendants residing in
the southern part of the West Bank are tried by the Military Court of Judea situated in the Ofer
Military base close to Ramallah.168 The Military Court of Appeals and the Administrative
Detention Court also operate within the Ofer Military Base.169 Moreover, branches of the
military court system are operated inside Israel. These courts are located in the vicinity of
interrogation facilities run by Israeli General Security Services (GSS) and mainly deal with
detention hearings.170
164 “The Judicial Arm of the Occupation: the Israeli Military Courts in the Occupied Territories“, p. 396. 165 Ibid; “Bound, Blindfolded and Convicted-Children in Military Detention“, p. 15. 166 “Backyard Proceedings”, p. 26. 167 Ibid, p. 40. 168 Ibid. 169 Ibid. 170 “Backyard Proceedings“ p. 41; It should be noted that operating courts within Israel violates Article 66 of the
fourth Geneva Convention which demands that military courts be located within the occupied territory.
37
Distribution of the Military Courts (2009)171
The location of the “Extensions” or branches of the military courts which operate within Israel
(blue outline) are subject to some controversy.172 Firstly, it is noted that Israel is bound by
Article 66 of the fourth Geneva Convention which requires that military courts only be operated
within occupied territory.173 Moreover, travel restrictions faced by Palestinians residing in the
West Bank render it practically impossible for them to travel to Israeli territory.174
Consequently, the families of defendants in these proceedings are prevented from appearing in
their trials.175 Additionally, Palestinian defence attorneys are hindered in their ability to defend
their clients in these proceedings (most detention centres are located within Israel as well).176
Consequently, this situation runs afoul of Article 14 (3) (b) of the ICCPR which requires prompt
access to legal assistance providing adequate time and facilities for the preparation of the
171 “Presumed Guilty: Failures of the Israeli Military Court System -An International Law Perspective“,
Addameer Prisoner Support and Human Rights Association, November 2009.“ (hereafter:Presumed guilty),
Appendix I; This structure is substantiated in: “Backyard Proceedings“ p.40. 172 Ibid, p. 41. 173 Fourth Geneva Convention, Article 66. 174 “Backyard Proceedings”, p. 41. 175 Ibid. 176 Ibid: Nancy Glass and Reem Salahi, “Defending Palestinian Prisoners: A report on the Status of Defense
Lawyers in Israeli Courts“, Addamer, January 2007, pp. 10-14.
38
defendant´s defence as well as the corresponding Article 40 (2) (b) (ii) of the CRC while the
exclusion of parents from the legal process is proscribed by its Article 40 (2) (b) (iii).177
2.3. The Structure and Composition of the Courts
Military judges and prosecutors must be members of the IDF in either active or reserve military
service and they are appointed by the IDF commander of the West Bank. Prosecutors are
normally selected from IDF legal staff, they often have an Israeli law degree and hold the rank
of lieutenant.178 Military judges are selected by a committee of seven members chaired by the
President of the Courts-Martial Appeals court.179 The committee selects judges from the IDF´s
legal staff which must at least have the rank of major, except for the Court´s presidents which
must have attained the rank of lieutenant colonel.180 Each judge must have at least five years of
military legal experience.181
Since 1967, military judges and prosecutors were both subordinated to the IDF´s highest
ranking legal officer, the Military Advocate General (MAG).182 However, as this was
considered detrimental to the equality between prosecution and defence the system was changed
in April 2004.183 Consequently, whilst the MAG retained authority over the military prosecution
service, the authority over administering the military courts was transferred to the Israeli
Courts-Martial Unit.184 Thereunder, a Military Courts Unit was established, headed by the
Presiding Judge of the Military Court of Appeals, an IDF officer with the rank of colonel.185
Whilst headed by the MAG, the prosecution service is administered with the assistance of a
Legal Advisor and a Head Prosecutor for the West Bank. They are responsible for supervising
the Head Prosecutors of the Military Courts who in turn supervise all other prosecutors within
the system.186 The MAG meets regularly with chief prosecutors where policy decisions, such
177 For a detailed discussion on the content of these provisions see: Committee on the Rights of the Child,
“General Comment No. 10 – Children´s rights in juvenile justice”, CRC/C/GC/10, April 25, 2007, paras. 49 et
seq. 178 Military Order 1651, Art. 75; “The Israel Military Court System in the West Bank and Gaza, p. 208. 179 Military Order 1651, 13 (A) 1. 180 Military Order 1651, Art. 11. 181 Ibid. 182 “The Israeli Military Court System in the West Bank and Gaza“, p. 207; “Backyard Proceedings”, p. 39. 183 “Backyard Proceedings”, p. 39. 184 Ibid. 185 “Backyard Proceedings, p. 30; “Presumed Guilty“, p. 7. 186 “The Israel Military Court System in the West Bank and Gaza, p. 208.
39
as instructions as to how to handle specific types of cases, are made. 187 Moreover, the MAG is
advised by the operational side of the IDF through regular meetings with field officers.188
The administrative composition of the Courts depends on the seriousness of the offences
tried.189 In the first instance, cases where penalties do not exceed ten years imprisonment are
presided over by one judge.190 A panel of three judges preside over more serious offences
where penalties range from ten years to life imprisonment and capital punishment.191 While the
Appellate Court is usually comprised of three judges their number can be raised to a five person
panel. In appellate detention hearings and some other cases the court can consist of one judge.192
2.4. “Legal Experience”
It must be considered imperative that the persons tasked with the administration of justice with
a jurisdiction of the nature possessed by the military courts, have a solid education in the
administration of criminal justice. Indeed, the level of judicial experience possessed by the
members of the military courts has been heavily criticised, even by its own.193 Atty. Daniel
Friedmann, who served as a reserve judge in the military courts observed in a meeting with the
Israeli Bar Association that:
“The main problem is that judges in the Military Courts are not professionals- they
have not taken any judicial courses. Generally speaking, they are attorneys, most of
whom are reservists. It makes a difference whether your chosen profession is that of a
judge or attorney. The fact that non-professional judges are serving has an impact. 194
It was once the case that panels of military judges would consist of lay judges, presided over
by those with legal background.195 The use of lay judges who would be regular officers in the
army was discontinued after some of them publicly described how they did not really have any
187 “The Israel Military Court System in the West Bank and Gaza, p. 208. 188 Ibid. 189 Military Order 1651, Arts. 16 and 17. According to data afforded by the IDF Spokesperson to Yesh Din, the
courts of first instance and the appelate courts were staffed with 14 permanent judges and 140 reservist judges at
the end of 2006. 190 Ibid, Art. 17 (C). 191 Military Order 1651, Art. 16. 192 Military Order 1651, Art. 19.A. 193 “Defending Palestinian Prisoners”, p. 22. 194 “Backyard Proceedings” p. 49, citing a Statement by Daniel Friedman at a meeting of the Military and
Security Committee of the Israel Bar Association: minutes dated July 2, 2003. 195 “The Israel Military Court System in the West Bank and Gaza, p. 208.
40
part in the actual decision making of the courts.196 Since then, military judges only consist of
officers with a legal background.197
However, critics consider this to fall short of ensuring that only fully qualified individuals be
tasked with judging offenders in the military courts. This is because the problem addressed by
Friedman has not been ameliorated.198 Lack of professionalism in court staff devalues their
credibility as administrators of justice. Furthermore, judges lacking solid basis in criminal law
and court procedure suffer a loss of the independence and impartiality gained by the full
knowledge of the law.199
2.5. Independence and impartiality
Article 8 of Military Order 1651 addresses judicial independence, stating that only the authority
of the law and security legislation holds authority over military adjudication.200 An additional
safeguard to their independence is provided in Article 14 of the same order which regulates
when the tenure of judges can be terminated.201 According to this Article, a judge´s tenure can
only be terminated without his consent for a finite list of reasons: Upon a doctor´s confirmation
that the judge is too ill to effectively administer his duties: if a reserve judge completes his
reserve service: if his tenure is terminated by the selection commission responsible for
appointing judges.202
Moreover, separating the command structure of the military judiciary from the prosecution was
an important step in ensuring the independence of the military court system.203 However,
despite the recent transfer of authority, judges and prosecutors are still appointed by the same
person: the IDF commander of the West Bank (upon whose authority Military Orders are also
enacted). Finally, as both judges and prosecutors are members of the Israeli armed forces and
thus subject to its chain of command.204
196 Amos Harel, “The Military Courts in the Occupied Territories: Judges with No Legal Education Pass
Sentences of Imprisonment, Haaretz, December 16, 2001. 197 “Backyard Proceedings” p. 50. 198 Ibid, p. 51. 199 “Defending Palestinian Prisoners“. P. 21. 200 Military Order 1651. 201 Ibid. 202 Ibid. 203 “Backyard Proceedings“ p. 47. 204 “The Israeli Court system in the West Bank and Gaza”, p. 208; “Backyard Proceedings”, pp. 47-55.
41
Indeed, it is questionable whether military courts presided over by members of an occupying
army could ever really be described as impartial towards the inhabitants of the occupied
territory.205 If they are to do so credibly, their proceedings must be subject to some form of
review and open to public scrutiny. After all, justice must not only be done, it must also be
seen to be done.206
However, the public is largely prevented from scrutinizing the courts conduct because most
military judgments are not made public. The military courts only publish selected judgments of
the military court of appeals which are not readily available to the public.207 In fact, defence
attorneys encounter difficulties in staying updated on the case law of the courts. They often hear
of new developments through other colleagues and must go to great length to obtain recent
jurisprudence. The unavailability of judgments contributes to legal uncertainty and hinders the
ability of defence attorneys to provide their clients with effective representation. 208
The need for some form of independent review on the proceedings of the military courts is even
more important considering the often limited judicial experience possessed by the persons
administering them. Nevertheless, Military Orders do not envision any form of independent
review of the conduct of the courts.209 To that end, the military court of appeals is considered
a sufficient safeguard. Moreover, the High Court of Justice is mentioned in this connection as
a last resort. 210 It should be noted however that the High Court of Justice limits its jurisdiction
to administrative causes, i.e. issues of reasonableness and jurisdictional considerations. The
Court is therefore not equipped in providing effective supervision to the military courts.211
2.6. The Military Court System: Some Conclusions
In conclusion, it can be said that the Israeli military courts need some improvement for them to
become a trustworthy justice system, especially for the Palestinians. The far reaching and
vaguely regulated nature of their jurisdiction allows the courts to conduct trials over any offence
committed in the West Bank and in some cases even outside the region. Vaguely defined limits
205 See general to this effect: General Comment No. 13 on Article 14 ICCPR, UN Human Rights Committee,
April 12, 1984, UN Doc. HRI/GEN 1/ Rev. 1.
206 This apt quote was first coined in the English Kings Bench by Lord Chief Justice Hewart in the case R v
Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) 207 “Backyard Proceedings“, pp. 118-121; “Defending Palestinian Prisoners“ pp. 21-22. 208 Ibid. 209 “Backyard Proceedings“, p. 26. 210 Ibid. 211 “Backyard Proceedings”, p. 26.
42
to jurisdiction devalue the legitimacy of the courts purporting to administer justice in this area
as it contributes to legal uncertainty when failing to limit their authority.
An additional hurdle to legal certainty lies in the lack of oversight to the case load of the military
courts. An effective oversight mechanism would contribute in furthering the somewhat limited
professional skills of court staff, but no such mechanism exists. Clarity is further inhibited by
the limited access to the jurisprudence of the courts rendering it exceedingly difficult to monitor
judicial impartiality and to keep track of jurisprudential developments.
3. The administration of juvenile military justice
The creation of juvenile military courts is unprecedented in international law.212 Military Order
1651 therefore pioneered this process in 2009 by creating one through temporary order and later
continuing their existence through permanent amendment.213 According to the Order, the trials
of first instance of suspected minor offenders aged 12 to 18 are to take place in juvenile military
courts.214 Aside from the first instance however, minors are tried through ordinary procedure.
That is to say, arrest and detention hearings as well as appellate proceedings are still presided
over by the ordinary Military Courts.215
Under Military Order 1651, judges who preside over minors should have received appropriate
training in dealing with juvenile offenders.216 Moreover, procedures regarding notification of
arrest of a juvenile suspect exist in military legislation and provisions providing for their
separate detention from adults are in force.217 Aside from these considerations however, in
practice, the military juvenile courts utilize the same court staff and facilities as the adult
military courts and for the most part, minors are subject to the same rules and procedures as
adults.218
212 “No Minor Matter”, -Official Response of the Military Courts to the B´Tselem Report, p. 68. 213This Order will be called: "Order regarding Security [Combined Version] (Amendment number 10) (number
1676) 5771-2011 (hereafter: Amendbment 1676). 214 Military Order 1651, Article 137. 215 Military Order 1651, Article 38 (B). 216 Military Order 1651, Article 137. 217 Amendment 1676, Amendment 5. 218 “Bound, Blindfolded and Convicted-Children in Military Detention“ DCI Palestine, Report, April 2012.
p. 17.
43
3.1. Arrest
Arrest orders can be issued by a judge, a police officer or, in combat situations, by an IDF
officer with the rank of captain.219 Soldiers are authorised to carry out arrest orders as well as
having authority to arrest persons without an arrest order if they have cause to suspect that a
person has committed an offence under Military Order 1651.220 There is no requirement of
reasonable suspicion nor are soldiers required to conduct investigations into offences.
Moreover, the Order stays largely silent as to how arrests should be conducted and detainees
should be treated. The IDF does have guidelines to this effect but they are not publicly available.
Consequently, when describing the conduct of arrest, reference will be made to interviews with
former IDF soldiers as well as to reports conducted by NGO´s and IO´s where appropriate, in
order to illustrate accepted practices.
While Military Orders do not regulate the time of arrest nor dictate their conduct, extensive
studies have shown that minors are most often arrested in their homes between midnight and
six in the morning by several armed soldiers.221 All the residents in their home are made to
leave the house as/before the arrest takes place. Reasons for arrest are generally not given nor
are arrest warrants presented.222 When apprehensive of the fate of their children, parents are
often placated with promises that the soldiers will bring them back soon, when in reality this
might not happen for several months.223
Being woken up by a group of armed soldiers entering their home is an extremely traumatizing
experience for minors and is widely considered as constituting torture or degrading treatment
as it is designed to frighten or terrorise the minor.224 The response of the army to this criticism
has been that night time arrests are sometimes imperative to the security of the armed forces.225
219 Military Order 1651, Arts. 32, 33 and 34. 220 Ibid, Arts. 30 and 31. 221 UNICEF Report, p. 10; “Bound, Blindfolded and Convicted”, pp. 25-29, “No Minor Matter”, pp. 26-29. 222 Ibid. 223 “No Minor Matter”, p. 27. 224 Committee on the Rights of the Child, “Consideration of reports submitted by States parties under article 44
of the Convention – Concluding observations: Israel”, CRC/C/15/Add.195, October 9, 2002 at para. 36:
UNICEF Report, p. 10; “Bound, Blindfolded and Convicted”, pp. 25-29, “No Minor Matter”, pp. 26-29. As to
the mental effects caused by this behaviour, see: Graciela Carmon, M.D., Psychiatric Expert Opinion, “Coerced
False Confessions: The Case of Palestinian Children“, Psychiatric Expert Opinion, May 2011.
225 “No Minor Matter”- Official Response of the Military Prosecutors Office to B’Tselem´s report, p. 74, para.
15.
44
While arrest in homes during the night are the most common means of arresting minors they
are not the only points of arrest. Other examples exist that also give cause for some concern.
For example, in response to many reports of stone throwing in the proximity of a certain
Palestinian village, every inhabitant under the age of 50 (and excluding the youngest children
under 10) were arrested and brought to a local school.226 Detainees were kept there for more
than twelve hours, all of them handcuffed and many of them subjected to abuse during their
detention. Soldiers guarded the villagers until officers of the Security Service arrived to collect
suspects.227 It is not uncommon that many people or many minors are rounded up in response
to stone throwing incidents. Routinely, the military rounds up several, up to twenty minors in
areas where stones are thrown and detains these children at gunpoint, interrogating them in
order to determine which children are responsible for the incidents being reported.228
Subsequently, some if not all of the minors are arrested on suspicion of stone throwing.229
Sometimes, minors are arrested because they are seen running away from military vehicles,
considered by some soldiers to be evidence of their guilt for stone throwing.230 In other
instances, minors are arrested because they appear the closest match to the description given by
an informant or a settler, but no official identification takes place and many soldiers express
doubt as to whether those detained were actually the ones throwing stones.231 In some cases,
Palestinian minors are arrested simply for annoying a soldier, smiling at him or being in their
way.232 Considering the very low procedural threshold for arrest combined with the lack of
effective oversight over the conduct of these arrests within the system, conditions are ripe for
abuse and the likelihood of arrest being arbitrary in nature is considerable.233
An additional cause for concern is the use of restraints when conducting arrests. In nearly all
cases the hands of minors are tied with one plastic strap behind their back and they are
blindfolded.234 Minors usually remain blindfolded and shackled for the whole duration of their
226 Breaking the Silence, “Children and Youth – Soldiers Testimonies 2005-2011“,
www.breakingthesilence.org.il., (hereafter: Breaking the Silence), pp. 18-19, the soldier estimated that
approximately 150 villagers had been detained that night. 227 Ibid. 228 Ibid, p. 70. 229 Ibid. 230 Ibid, p. 13. 231 Ibid. p. 71.Other reports of doubt can be found at pp. 13 and 9. 232 Ibid, p. 37. 233 This is collaborated by the reports of the former soldiers in Breaking the Silence, out of 47 interviews
conducted regarding the treatment of minors, hardly any did not involve accounts of violence of some form
being exacted upon minors by the hands of soldiers. 234 “Bound, Blindfolded and Convicted”, p.7, “Children in Military Custody” p. 36: UNICEF Report, p. 7; “In
their own Words: A report on the situation facing Palestinian children detained in the Israeli military court
45
transportation to interrogation.235 Transportation can take up to two days, with stops in
settlements, where minors often report they were beaten, threatened, exposed to the elements
and denied food, water and trips to the bathroom.236 Others report being kept on the floor of the
army vehicle transporting them and many soil themselves out of fear or because they have not
been permitted to use the bathroom.237 Soldiers involved with this procedure report that
detainees were sometimes a source of entertainment to the soldiers, some having their picture
taken with the blindfolded prisoner.238
While generally speaking it should not be considered acceptable to allow soldiers to conduct
the arrest of minor suspects, it is worth mentioning that some progress has been made in the
treatment of juvenile detainees.239 In response to a report made by an NGO criticising the
conduct of arrest of minors, the Israeli government held that a suspect’s minority is in fact taken
into account. To arrest a minor, permission from a head prosecutor is required although no
references were given to the provision demanding this and no information was furnished on the
criteria used by the prosecutor to decide on giving permission either.240
Another improvement was made in response to complaints made by the Public Committee
Against Torture in Israel when the army issued guidelines aimed at minimising the pain incurred
by the use of plastic straps as restraints on minors. The procedure requires that hands be tied
with three plastic straps instead of one and that hands be kept in the front rather than behind a
detainees back.241 Nevertheless, supervision is limited and there is little evidence to show that
this procedure is complied with in practice.242
Military Order 1676 saw another improvement enacted, which required that a minor´s parent
or guardian be notified of his or her arrest “as soon as possible” upon their arrival at a police
system“, DCI Palestine, Reporting period: 1 January to 30 June 2011, submitted, July 19, 2011, p. 4. These
accounts are also widely corraborated in Breaking the Silence testimonies at: pp. 9, 12, 14, 15.
See extensive coverage of this practice in:Atty. Samah Elkhatib-Ayoub, “Shackling as a Form of Torture and
Abuse“, The Public Committee against Torture in Israel, Periodic Report: June 2009. 235 Concluding Observations of the Committee on the Rights of the Child, Israel, 2002, para. 33 where the
Committee notes with some concern that plans are in motion to incorporate juvenile justice standards within
military courts. 236 “Bound, Blindfolded and Convicted”, pp. 30-32: UNICEF Report, p. 10. 237 Ibid. 238 Breaking the Silence, pp. 21, 56, 66. 239 “No Minor Matter”, -Official Response of the Military Courts, in response to the Report of B’Tselem p. 68. 240 “No Minor Matter”, - Official Response of the Military Prosecution Service to the Report of B´Tselem, p. 73,
para. 9 where it states that military prosecutors conduct supervision over arrests of a minor “over and above the
required supervision by law. As such, the arrest of a minor required the authorization of a senior judicial official
who is not part of the investigative body.” 241 UNICEF Report, p. 7. 242 Ibid.
46
station.243 Considering that it can sometimes take days to transport the minor detainee to a
Police Station or interrogation centre, parents are often unaware of the whereabouts of their
children for a long time, sometimes not knowing they have been arrested and unaware of their
fate until notified by the police.244
An additional response to criticism was made when a provision was added requiring that if a
minor can name an attorney, said attorney will be notified of the details of the investigation.
However, this improvement comes with the caveat that notification will not delay the
investigation.245 Another drawback of this provision is that it assumes the unlikely eventuality
that the minor can name a lawyer.246
While it is laudable that the IDF has responded to criticism on this front by amending some
procedures as they relate to minors these still fall short of ensuring just treatment of Palestinian
minors. In practice, no significant differential treatment exists between conducting the arrest of
a juvenile suspect to that of an adult. The often terrifying conduct of arrest, with soldiers
invading their home in the middle of the night, followed by harsh and often abusive treatment
by soldiers during transportation, is violent and terrifying to the minor.
Indeed, the Committee on the Rights of the Child have characterized this treatment as torture
and commented that the experience is likely to cause significant psychological damage to the
minor. Moreover, psychiatrists have noted that the violent nature of these arrests can contribute
to a minor surrendering into giving a false confession while under interrogation. 247 The
psychological effects on minors of the methods of arrest therefore serve as segue to the next
step in the process, one which is likely to have an even more profound effect on their mental
state, namely, detention.
3.2. Detention
Prison conditions and family separation weigh more heavily on a minor than an adult and it is
internationally recognized that incarceration should only be used as a measure of last resort
243 Military Amendment 1676, Art. 136 (A). 244 “Bound, Blindfolded and Convicted”, pp. 19 et seq. 245 Military Amendment 1676, Art. 136 (C). 246 “No Minor Matter“ p. 34:“Bound, Blindfolded and Convicted“, p. 19. 247 See Supra note 228 and Committee on the Rights of the Child, “General Comment No. 10 – Children´s rights
in juvenile justice”, CRC/C/GC/10, April 25, 2007, para. 57.
47
when dealing with juvenile offenders.248 The Convention on the Rights of the Child contains
several provisions regarding the treatment of juvenile offenders in detention which are aimed
at minimizing the traumatizing effects of detention.249 A central tenet thereof is to separate
minors from adult detainees. Additionally, minors should be represented by counsel during
interrogation and be thoroughly informed of their rights and duties in the criminal process.250
Whereas Military Order 1651 and its Amendment No. 1676 contain some provisions
concerning the treatment of minors in detention, these are subject to severe restrictions and
exceptions and fall short of ensuring the rights of minor offenders as they are foreseen in the
Convention on the Rights of the Child. Consequently, the following sections will elaborate on
how those procedural rights relating to detention that are granted in Military Order 1651 are
largely negated by their ambiguous wording and the wide discretion given to IDF officers to
disregard them when they consider it to be in the interest of “the security of the region or the
interest of the investigation”.
3.2.1. Rights Relating to Detention under Military Order 1651
Under Military Order 1651, minors have a right to consult with an attorney and should be
notified of their “obligations as a suspect” in a manner deemed appropriate by the Police
Commander.251 Minors have the right to challenge the legality of their detention and should
charges be brought against them, a judge is authorised to order that they should be released on
bail pending their hearing.252
While Military Order 1676 expressly states that a minor has the right to consult with an attorney
in private, it holds no mention as to when said consultation is to take place.253 Indeed, practice
has shown that minors rarely meet with a lawyer before they appear in court as Military Order
1651 grants Police Officers as well as military judges the authorisation to defer a detainee´s
meeting with a lawyer for up to 90 days.254
248 Article 37 CRC: General Comment No. 10, paras. 28 and 29. 249 Ibid. 250 Ibid, para. 58. 251 Military Amendment 1676, Amendments 5 and 6. 252 Military Order 1651, Articles 29-47. 253 Ibid. 254 “Children in Military Detention”, para. 65.
48
Specifically, Police Officers can prohibit a meeting with an attorney for thirty days in total, if
he or she is of the opinion that allowing such a meeting would endanger the security of the
region or inconvenience the interrogation of the suspect.255 A judge can then order deferral of
additional thirty days for the same reasons.256 Ninety days of incommunicado detention is
however only allowed if the president or vice president of the Court of First Instance receive
written confirmation from the IDF Commander of the region that “special reasons of security
of the region necessitate this”.257 Consequently, the military has wide discretion to determine
whether a detainee be allowed access to an attorney. Such unchecked authority is open to abuse
as there are no independent criteria to determine the reasonableness of such decisions.
Even if such an order is not in place against the minor suspect, the circumstances prevailing in
the area often prohibit an attorney from meeting with their client. Considering that minors have
more difficulties in understanding the criminal legal process than adults this arrangement is
detrimental to the welfare of the minor subjected to it.258 Without legal counsel, the minor is
unaware of his rights and is left in uncertainty regarding his future. This leaves the minor
vulnerable to abuse and likely to render false confessions once interrogated. 259According to
the Committee on the rights of the Child, it is absolutely imperative that a child be assisted by
legal counsel at the commencement of interrogations at the latest.
3.2.2. Interrogation
Usually, arrested minors are taken to one of eighteen interrogation and detention centres, many
of which are located within Israel.260 As has been noted, minors have a theoretical right to
consult with a lawyer but there is no provision mandating that this happen before their
interrogation or that lawyers be present during the investigation. Indeed, various NGO reports
note that as a rule, a lawyer is not present during the interrogation of minors.261
255 Military Order 1651, Art. 58 (C) and (D). 256 Ibid, Art. 59 (B). 257 Ibid, Art. 59 (C). 258 General Comment no. 10, para. 58. 259 Ibid. Para. 52. 260 “Presumed Guilty: Failures of the Israeli Military Court System -An International Law Perspective“,
Addameer Prisoner Support and Human Rights Association, November 2009.
p. 6. 261 “Children in Military Detention”, para. 68.
49
There is further no provision for the presence of a parent or guardian during interrogation, nor
is audio visual recording required.262 Palestinian minors have the right to silence but there is
little evidence that they are generally sufficiently informed of the meaning of said right.263
Finally, it should be noted that although there is a provision requiring that a suspect sign their
confession or the report of their interview, there is no corresponding provision that the
document must be in a language which they understand and there are consistent reports of
minors being required to sign documents in Hebrew.264
In general, it can be stated that Palestinian minors are afforded with insufficient procedural
safeguards in relation to their interrogation.265 This is particularly worrisome as the vast
majority of convictions are based on a minor´s confession obtained through interrogations
which have widely been described as essentially coercive in nature. Supporting evidence is
most often statements made by other minors under the same conditions, along with the
testimonies of soldiers.266
3.2.3. The Right to Challenge the Legality of Detention
A person arrested without an arrest order can be held in detention for 96 hours before such an
order must be issued.267 Should such an order be issued by a police officer, a person can be
detained for eight days.268 Such an order can be contested before a judge by the detainee. Should
a military judge issue the arrest order however, he or she can order the remand of a detainee
without charge for a combined total of up to six months.269 A detainee can appeal such an order
to the Military Court of Appeals which has complete discretion to determine the proceedings
of the appeal as well as the presence of the litigants.270 Recently, the IDF enacted an amendment
to this rule relating to minors in detention, requiring them to appear before a judge within four
days after arrest.
262 Ibid, p. 7. 263 Ibid, paras. 36 and 86. 264 Military Order 1651, Art. 70 (C). “No Minor Matter”, p. 30. 265 “Children in Military Detention”, para. 58. 266 Ibid. 267 Military Order 1651, Art. 31 (C). 268 Ibid, Art. 32. 269 Ibid, Arts. 36 and 37. 270 Ibid, Art. 45.
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3.2.4. Release on Bail – Detention until Trial is completed
Once charges have been brought against a minor suspect, a judge is authorised to release him
or her on conditions of bail or to continue detaining them until the completion of their trial.271
Whilst release on bail is envisioned in Military Order 1651, practice shows that the provision
allowing for the detention of a detainee until the completion of their trial is the one favoured by
military judges.272 A minor can be held in detention without a conclusion to their trial for up to
2 years, after which the Military Court of Appeals must reconsider the requirement to sustain
the detention.273 Should the appellate court decide to do so, there is no maximum limit as to
when a verdict must in fact be reached.274
3.3. Trial
Considering that judgments of the military courts are generally not made public the conduct of
trials can-not be fully examined in this section. However, there are some provisions regarding
the conduct of trials that are interesting to look at. Amongst these are the Court´s rules of
evidence; the burden of proof; the language used at trials; the right to appeal and the conduct
of plea bargaining. This last aspect will receive particular attention as the overwhelming
majority of cases end by conviction through plea bargains.275
3.3.1 Rules of Evidence
The Military Courts are to use the same rules of evidence as Israeli Criminal trials.276 However,
judges are authorised to use any other trial procedure they believe would be in the interest of a
271 Ibid, Arts. 42 and 43. 272 “Children in Military Detention” para. 76 where it is stated that approximately 90% of cases result in such a
verdict. 273 Military Order 1651, Art. 44. 274 Ibid. 275 “Children in Military Detention”, para. 80. 276 Military Order 1651, Art. 86.
51
fair trial.277 Moreover, judges can order the non-disclosure of certain evidence if certified by a
Military Officer that disclosure would endanger security of the region or of the witness, as the
case may be.278 Consequently, according to Military Order 1651, the military courts have full
discretion to determine the procedural rules applied in their courtroom and can further decide
to exclude any evidence from the purview of the defence in the interest of vaguely defined
security considerations.
3.3.2. The Burden of Proof
The burden of proof is reversed in military trials. That is to say, the defendant must prove that
“his matter is exempt, permitted or justified, or that he possessed a license, permit, approval or
authorization” for any behaviour believed to be in contravention to the law.279 This arrangement
runs contrary to the presumption of innocence guaranteed in both the CRC and the ICCPR
which demands that the prosecution must prove that a defendant violated the law rather than
the opposite: that the defendant must prove his or her innocence.280
3.3.3. Translation
Trials are normally conducted in Hebrew but defendants have the right to a translator.281 These
are usually hired from the Druze community. Druze translators are soldiers serving compulsory
military duty and are bilingual: Arabic is their native language and they have learned Hebrew
in their compulsory education.282 They are not trained interpreters and are tasked with a wide
array of other duties during the conduct of trials, such as organising the court schedules and
leading defendants in and out of courtrooms.283
Because of their lack of education as interpreters and the heavy burden of other duties imposed
on the translators the quality of their work suffers. Most are not versed in Hebrew legal language
277 Ibid, Art. 88. 278 Ibid, Art. 87. 279 Ibid, Art. 208. 280 Articles 40 and 14, respectively. See also:General Comment no. 10, para. 42. 281 Military Order 1651, Article 19. 282 “Backyard Proceedings“, pp. 144-156. 283 Ibid.
52
and defence attorneys often complain of unqualified translations.284 Consequently, defendants
which mostly do not speak the Hebrew language are prevented from fully understanding the
proceedings against them. This violates their right to be tried in a language they understand or
else be assisted by an interpreter to do so.285
3.3.4. Plea Bargaining
The overwhelming majority of cases ends in conviction through plea bargaining or
approximately 90-97% of all cases.286 Trials in which a full hearing was held, including the
examination of witnesses and evidence are consequently very rare, with a report showing that
this happened in only 1,2 % of cases processed in 2007.287 Defence attorneys report that they
advise their clients to accept a plea as this will invariably lead to less prison time.288
Plea bargains are attractive to all participants in this process. The courts approve of this practice
because it helps unload the very high number of cases encountered by them and the same applies
to prosecutors.289 Defence attorneys often report that they feel they have no other option than
to enter into a plea bargain, especially when defending a minor detainee.290 This is largely due
to the prevailing practice of detaining a minor until the end of the proceedings which due to the
high case load of the courts can take considerably longer than the prison sentences minors can
expect if they enter a plea.291
The resulting drawback of this practice is that minors who have not already confessed during
interrogation are pressured into doing so at the trial stage from all directions. Considering that
all the participants of the process see this option as the quickest route out of detention for the
minor the likelihood is very high that a minor would confess at this stage even if he has
maintained his innocence so far.
284 Ibid. for a more comprehensive study, see: Lisa Hajjar (2000): “Speaking the conflict, or how
the Druze became bilingual: a study of Druze translators in the Israeli
military courts in the West Bank and Gaza“, Ethnic and Racial Studies,
23:2, 299-328. 285 Articles 14 and 40 of the ICCPR and the CRC respectively require this to be fulfilled. 286 “Children in Military Detention” para. 80. 287 “Presumed Guilty“, pp. 17-19. 288 “Children in Military Detention” para. 80. 289 “No Minor Matter“ Official Responce of the IDF Spokesperson to the Report of B´Tselem, p. 68, para. 6. 290 „Defending Palestinian Prisoners“ pp. 24-26:“Bound, Blindfolded and Convicted“, p. 41. 291 “No Minor Matter“, Official Responce of the IDF Spokesperson to the Report of B´Tselem, p. 68.
53
3.4. Sentencing and Appeals
The right to appeal is conditional upon the approval of the Court of first instance in a one judge
panel.292 In a three judge panel, the right to appeal does exist but the authority to accept it
remains with the appellate court. As most cases end with a plea bargained conviction, appeals
of this kind are rarely resorted to. In some instances the Israeli High Court of Justice has
jurisdiction to hear further appeals293
The conviction rate in the Military Court system is extremely high or 99%.294 Although the
Military Orders allow for a sentencing of up to 20 years imprisonment, studies show that minors
are usually sentenced to a fine and imprisonment ranging from a week up to ten months.295 It
should be noted that while recently amended Military Orders restrict the length of permissible
imprisonment of minors, they only do so in the case of children under the age of fourteen for
the offence of throwing stones. Children under 14 can-not serve a longer sentence than six
months imprisonment, whilst older children are subject to the same sentencing provision as
adults. 296 Fines imposed usually average from the equivalent of 200-400 euros and failure to
pay the fine can extend the prison sentence of the child in question.297
3.5. The Administration of Juvenile Military Justice: Some Conclusions
It is particularly worrisome that detention hearings largely take place inside Israel where family
members of the detained as well as many defence attorneys are effectively prevented from
attending the hearings. Out of the 18 detention facilities used to hold Palestinians, 17 are located
within Israel. Trials to determine the legality of detention are conducted in courtrooms located
in the vicinity of these centres which, because of travel restrictions, makes it practically
impossible for the persons most concerned with the welfare and rights of the child to attend the
trials and ensure some form of accountability in this respect.
292 “The Israel Military Court System in the West Bank and Gaza“ p. 208. 293 Ibid. 294 “Children in Military Detention”, para. 80, 295 “No Minor Matter“, p. 18. 296 Ibid, p. 15. 297 Ibid, pp. 18-19.
54
In light of the low threshold required for the arrest of minors and without any specific criteria
regulating when detention is justified the whole procedure becomes open to abuse.298 The
procedures governing the military courts only seem to compound the problems faced by
juveniles accused of stone throwing. Confronted with a reversed burden of proof, loosely
defined rules of procedure open to arbitrary decision making and often unable to understand
the proceedings it is perhaps no wonder that most defence attorneys advise their clients to
confess. The practice of detaining children until the end of proceedings not only violates their
right to presumption of innocence, it adds to the pressure of confessing to an offence they may
not have committed.
In this long standing conflict, both sides stand accused of acts of unspeakable violence.
Tensions are high and so becomes the temptation to punish a person solely for belonging to the
opposite party. Stone throwing has become the iconic form of resistance for Palestinians,
especially young boys opposing the occupation. Regardless, the Israeli forces must ensure that
when addressing this problem, they punish only those persons responsible for throwing the
stone, not simply any one of the many belonging to the group most likely to do so.
In the recent past, the IDF has attempted to improve its conduct towards juvenile offenders
within the military court system and does afford them with some procedural rights. Still, under
the current legal framework, the danger exists that in a power relationship defined by one nation
exercising authority as the occupying power of another, the former might exceed the limits of
their power and abuse the rights of the population under occupation. The following section will
consider whether the nature of this legal framework allows for and indeed leads to the
imposition of collective punishment against Palestinian minors for throwing stones.
IV. Analysis
While the foregoing chapters described the legal framework governing the treatment of
Palestinian minors accused of stone throwing this chapter will consider whether punishment for
this offence as it is conducted in the West Bank could be construed as constituting collective
punishment. This study does not purport to play the role of a court of law in this respect and
the elements of the crime as they were established by the SCSL therefore only serve as the
298 I.e. Art. 30 of Military Order 1651 only requires cause to suspect an offence to allow for arrest and the
provisions regarding the hearings make no mention of any additional requirements.
55
frame of reference useful to determine whether these elements exist within the military court
system.
Consequently, this chapter will begin by readdressing the constitutive elements of collective
punishment before turning to their application to the subject under review: namely, the
punishment of minors accused of stone throwing. To this end, the process encountered by the
minors described in Chapter Three will be revisited under the considerations of the element of
actus reus of collective punishment. Thereafter, Israeli State practice will be examined to
determine whether indications exist as to the mens rea element of collective punishment. Once
this has been accomplished, the chapter will provide some conclusions.
1. General Requirements
To invoke the scope of the prohibition of collective punishment, perpetrators must be actively
participating in an armed conflict or the occupation of territory in the sense of the Geneva
Conventions and their Additional Protocols.299 That is to say, those engaging in the act must be
members of the armed forces, agents of the State of Occupation or members of armed resistance
groups, as the case may be.300 Correspondingly, the victims of the act must be protected persons
in the sense of the Conventions, i.e. the civilian population not taking active part in hostilities
or the civilian inhabitants of a territory under belligerent occupation.301
2. Definition
The SCSL defined the elements of collective punishment as:
(i) The indiscriminate punishment imposed collectively on persons for omissions or
acts for which some or none of them may or may not have been responsible and
299 Francoise Hampson in Perspectives on the ICRC Study on Customary International Humanitarian Law
(Online edition), ed. Elizabeth Wilmshurst and Susan Breau, Cambridge University Press, Book DOI:
http://dx.doi.org/10.1017/CBO9780511495182, p. 299. 300 “Collective Punishment”, para. 1. 301 Ibid.
56
(ii) The specific intent of the perpetrator to punish collectively.302
Considering that the origin of the prohibition stems from the universal respect for the
requirement of individual criminal responsibility for the imposition of punishment, the actus
reus of collective punishment must lie in inflicting punishment upon persons without
establishing their guilt for any given offending behaviour.303
Such a construction resonates with the motives giving rise to the practice in the first place: The
desire of hostile armies to suppress or deter acts of resistance within a civilian (occupied)
population - the individual perpetrators of which being difficult if not impossible to identify -
by punishing the community as a whole.304 Considering its history it is evident that collective
punishments were intended to subdue and terrorise a population to better control it, often under
the guise of law enforcement.305
Although it would be desirable to include a requirement of fair trial guarantees in the definition
of collective punishment, it would discredit the stated intent of the drafters of the rule to include
in its prohibition all forms of punishment.306 However, for individual criminal responsibility to
be determined credibly, most cases would seem to call for adherence to the fundamental
principles of fair trial. These would include guarantees such as the right to trial by a properly
constituted independent and impartial tribunal with the assistance of legal counsel. Respect for
302 CDF Trial Judgment, para. 224; In the same case Justice Winter, departed from this, preferring to define the
elements
as:
(1) An indiscriminate sanction directed against protected persons for their perceived conduct;
and,
(2) The specific intent to punish persons or groups of persons collectively for their perceived
Conduct.
Partially Dissenting Opinion of Honorable Justice Renate Winter, para. 46. 303 “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“, pp. 29-30;
“Collective Punishment“, para. 10. 304 “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“, pp. 29-30. 305 “Prosecuting theWar Crime of Collective Punishment-Is It Time to Amend the Rome Statute?“, pp. 29-30. 306 ICRC Commentary to the Additional Protocols, p.1374: collective
punishments:
“[Collective punishments] should be understood in its widest sense, and concerns not only
penalties imposed in the normal judicial process, but also any other kind of sanction (such
as confiscation of property) as the ICRC had originally intended. The prohibition of collective
punishments was included in the article relating to fundamental guarantees by consensus.
That decision was important because it is based on the intention to give the rule the
widest possible scope, and to avoid any risk of a restrictive interpretation.“
57
the principle of presumption of innocence is central in this respect and therewith the right to
challenge the legality of detention.
Consequently, in contrast to the contention in the AFRC Case that “some semblance of due
process” would ostensibly suffice to exonerate notions of collective punishment, the author is
of the view that universally accepted principles of due process should serve as useful tools to
evaluate indications of collective punishment in a given case.307 These would appear most
appropriate in ensuring the individual criminal responsibility of the accused and protect him
from the intent of powerful armies to repress popular resistance “the easy way” that is, without
finding the actual offenders, choosing rather to supress the entire population through arbitrary
use of force. 308
Turning then to the subjective element of the crime; the historic motives behind the commission
of collective punishment offer authoritative guidance to its content, as has been noted.309 The
required intent should therefore be to punish indiscriminately persons or groups of persons for
acts deemed likely to have been committed by unknown members of that group. Moreover,
considerations such as aiming to deter members of that group from engaging in prohibited acts
by indiscriminately or arbitrarily punishing members of the group for such behaviour could be
considered powerful indicators to the existence of intent to employ collective punishment in the
sense prohibited by international humanitarian law.
Considering then whether the way in which justice is administered over Palestinian juveniles
allows for the imposition of collective punishment. From the outset, the general requirements
for the crime are fulfilled. That is to say punishment is enacted by the occupying forces upon a
population in the course of an occupation which is governed by the fourth Geneva Convention.
It remains to be determined whether Palestinian minors are being punished collectively for the
act of stone throwing.
3. Actus Reus
First there has to be an act for which persons are potentially punished collectively, in our case
this act is the throwing stones, most commonly at Israeli soldiers or their vehicles. The
307 AFRC Trial Judgment, paras. 678-680. 308 See inter alia to that effect: UN Human Rights Committee, General Comment No. 29 (Article 4 of the
International Covenant on Civil and Political Rights: “Prosecuting the War Crime of Collective Punishment-Is It
Time to Amend the Rome Statute?“, pp. 29-30. 309 See: p. 56.
58
behaviour is common and culprits are exceedingly difficult to apprehend as the circumstances
under which they commit the crime most often allow for an easy escape.310 However, in order
to establish whether punishment imposed through the military court system fulfils the actus
reus requirement of the offence it must be considered whether the courts punish Palestinian
minors indiscriminately and collectively for acts which some of them may or may not have
been responsible.
In order to determine whether this is the case the conduct of processing minors accused of
stone throwing as described in the previous section will serve as a frame of reference. Starting
with the arrest of the minor and concluding with his trial this section will examine whether rules
and procedures applied in this process allow for the imposition of collective punishment.
1. Arrest
Arrests are commonly carried out in the middle of the night by squads of heavily armed soldiers.
All inhabitants of the suspect´s home are made to leave the house. Suspects are not notified of
the reason for their arrest. Their families are often placated with phrases such as: “we´ll bring
him back soon”, or “we only need him for a minute”. 311
Once arrested suspects are subjected to a range of abuse. Nearly all are shackled with plastic
straps irrespective of their behaviour, they are also blindfolded. The Convention on the Rights
of the Child specifically states that children should be restrained only as a last resort. Here it
seems the norm. Transport can take a long time, from several hours to a day. Often soldiers stop
at a settlement, where many children report they were abused, exposed to the elements and
threatened or beaten and denied food and water.312
Conducting arrests during night time with heavily armed soldiers, shackling and blindfolding
the child and generally treating it disrespectfully during transit are all designed to lower their
resistance during interrogation: sleep deprived, still in shock after their arrest and often afraid,
they are likely to confess just to be left in peace.
As Minors have more difficulty in understanding the criminal process than adults their
incommunicado detention is likely to weaken their resolve even further. For example, they often
310 See chapter III, section 1. 311 See chapter III, section 3.1.. 312 Ibid.
59
do not know that interrogators can lie to them and because of their minority they are taught to
respect the authority of adults, especially the police and military.313
Moreover, interrogators do not adequately inform minors on their right to remain silent and
what this right entails. This violates the requirements of the Convention on the Rights of the
Child that children be free of compulsory self-incrimination. In that vein, it should be noted
that according to the Committee on the Rights of the Child, the notion of compelling should be
interpreted broadly:
The term “compelled” should be interpreted in a broad manner and not be limited to
physical force or other clear violations of human rights. The age of the child, the child´s
development, the length of the interrogation, the child´s lack of understanding, the fear
of unknown consequences or of a suggested possibility of imprisonment may lead
him/her to a confession that is not true. That may become even more likely if rewards
are promised such as “You can go home as soon as you have given us the true story”,
or lighter sanctions or release are promised.
Nevertheless, interrogators often are accused of using coercive interrogation methods to obtain
a confession from the child.314 These methods include beatings and other physical violence,
often in combination with psychological violence such as threatening the minor or his or her
family to obtain a confession.315 Interrogations can last a very long time, sometimes lasting
weeks and solitary confinement can be employed to weaken a child´s resolve.316 Until recently,
the Israeli army had an administrative framework with a command structure for using torture
in interrogations. The High Court of Justice found these practices to be illegal and formally
banned them. 317 However, the practice appears to continue, less openly perhaps but complaints
against maltreatment are most often ignored and impunity seems to surround abusive
interrogators and soldiers.318
Isolating the children from persons who have their interest at heart and who can inform them
of their rights and calm their fears is a means of weakening their will even further. Detaining
313 “Bound Blindfolded and Convicted“ p. 34 et seq. 314 Ibid. 315 See Chapter 3 Section 3.2. Also see Graciela Carmon, M.D., Psychiatric Expert Opinion, “Coerced False
Confessions: The Case of Palestinian Children“, Psychiatric Expert Opinion, May 2011. 316 “Bound Blindfolded and Convicted“ p. 34 et seq. 317 Public Committee Against Torture , in Israel and others v. The State of Israel (1999) 53 (4) PD 81 (The
Torture Ruling). 318 “Bound, Blindfolded and Convicted”, p. 34, Breaking the Silence, pp. 63, 69: The Military Courts in the West
Bank and Gaza, p. 206: Human Rights Watch, “Promoting impunity, The Israeli Military Failure to investigate
Wrongdoing”, June 2006, Vol. 17 No 7 (E), p. 7.
60
them inside Israel all but ensures that their family will have no access to them during the entirety
of their detention.319 Moreover, using coercive measures during interrogation can be used to
manufacture confessions from children. These confessions, often obtained under duress,
without the assistance of a lawyer are then often the sole evidence against them in the military
courts.320
Palestinian children are hardly ever released on bail before their hearing. 321 There is no
requirement to evaluate the necessity of keeping the child in detention in law at all. Should a
child not have confessed during interrogation, it is likely to do so once it meets with its lawyer
because in most cases, this will shorten their imprisonment considerably. Keeping children in
pre-trial detention violates their right to presumption of innocence and is a grave violation to
their rights under the CRC. 322
Aid workers whose stated purpose is to help these children claim this is the only way to get
them out of the system as soon as possible.323 Should they not confess they will likely be held
in pre-trial detention for a considerable period of time and later receive a harsher sentence than
if they had confessed.324 Consequently, hardly any cases end up in trial with over ninety percent
being settled with plea bargains. The evidence most used is the child´s own confession,
evidence obtained from other children´s confessions and the testimonies of soldiers.325
If irrespective of their guilt, children are advised to confess so that they may eventually be free
it indicates that the aim of these trials is merely to punish somebody, anybody. Consequently,
it would appear that the first element of the crime of collective punishment is present in this
case. What remains to be determined is whether the specific intent to punish collectively is
present.
4. Mens Rea
Before examining the mens rea element of collective punishment an important caveat should
be entered here. It is not the purpose of the author to accuse a specific person of having
committed the war crime of collective punishment. The author names no names and does not
319 See Chapter III, section 2.2. 320 See Chapter III, section 3.2. 321 DCI Palestine approximates that minors are relaeased on bail only in 13% of all cases. 322 CRC Article 37 (b): General Comment no 10, para. 80. 323 Children in Military Custody, para. 37. 324 “Defending Palestinian Prisoners“ pp. 24-26: “Presumed Guilty“, p. 17. 325 Ibid.
61
intend to impeach IDF commanders or military judges as war criminals. The stated purpose of
this study is to determine whether the conditions surrounding the punishment of minors for
stone throwing in the West Bank allow for collective punishment to occur. As such, the
elements of the crime only serve as a useful guidance to identify indications of whether this is
in fact the case. Consequently, when determining whether the element of mens rea is fulfilled,
it will be considered whether in general the intent to punish collectively is something
characterizing the process under review.
From the outset, it should be noted that generally the State of Israel has not been shy to employ
collective punishment against the Palestinian population for acts of resistance.326 For example,
they have been the subject of fierce international censure to this effect because of their practice
of demolishing homes of persons suspected of committing suicide attacks inside Israel. The
construction of a separation wall within the West Bank as well as the high number of road
blocks and military check points severely limiting the freedom of movement of its Palestinian
inhabitants have also been condemned as forms of collective punishment.327 In these instances
however, persons are punished either for belonging to the family of a suspected terrorist or for
simply being a Palestinian living in the West Bank.
The intent to punish collectively is less evident in the subject of review. Punishment occurs
after a legal process furnished by judges, prosecutors and defence attorneys. Rules of procedure
are in place and the stated purpose of the military courts is to administer justice as a result of a
fair process. Nevertheless, some indications exist that the IDF and its military courts are not all
too concerned with the individual criminal responsibility of the minors convicted for stone
throwing. These are gleaned from interviews made with former IDF soldiers as well as public
statements made by the Israeli government.
Former IDF soldiers report that the Israeli army frequently resorts to scare tactics to deter stone
throwing in locations where these are frequently reported. These tactics include the daily
incursion of a large number of troops into such areas aimed at harassing the local population
into tranquillity.328 After a few days the streets of the affected village once bustling with traffic
were left empty as the villagers dared not leave their homes in fear of the soldiers.329 Other
examples, such as detaining the large majority of villagers in their local school described above
326 See for example: S. Darcy, “Punitive House Demolitions, the Prohibition of Collective Punishment and the
Supreme Court of Israel“, 21 Penn State International Law Review (2003) 477. 327 See Supra note 101. 328 Breaking the Silence, p. 7. 329 Ibid.
62
were conducted with the stated intent of deterring future stone throwing.330 Soldiers also
describe how they are made to round up several children and hold them at gun point until they
identify stone throwers. Some commanders in the IDF reportedly teach their subordinates that
Palestinians, regardless of their age deserve to be treated badly to teach them a lesson in “how
not to throw stones”. Others report that the view is prevalent within the army that Palestinians
are all the same, they are all terrorists and criminals and should be treated as such. 331 Some
commanders arrest minors guilty of looking at them the wrong way or even for smiling at them.
The officers responsible for the interrogation of minors have no qualms in using coercive
interrogation methods to extract confessions and despite many complaints against them, little
is done to address these issues. Whereas some judges within the military courts are reported to
hold the same views as the soldiers that is to say that all the persons before them at trial are
criminals or terrorists.332
Palestinian minors often throw stones at IDF personnel or their vehicles. Sometimes this can
constitute a threat to their lives and it is quite understandable that they would wish to punish
those responsible. However, considering the attitude prevailing within its ranks it would appear
that they would have little reservations in punishing another Palestinian minor should they fail
to find the actual culprit. No investigations into the crime are conducted and convictions almost
exclusively rely on confessions and plea bargains. Once they have arrested a minor they
frequently subject him to ill treatment and abuse, in some instances reaching the level of
torture.333 In light of how frequently Palestinian minors are arrested in the West Bank and
considering further the impunity enjoyed by the soldiers engaged in such behaviour it can be
stated that the IDF itself at least implicitly accepts their maltreatment.
It is perhaps not the stated official policy of the IDF to punish stone throwing collectively.
Nevertheless, the prevailing mentality in the armed forces that all Palestinians are criminals or
terrorists is cause for concern. Moreover because of their failure to promulgate effective
procedural safeguards to prevent ill treatment of suspects and to ensure they are afforded with
a fair trial serve as a strong indication that military officials are not all too concerned with
apprehending the right suspect as long as someone is punished. To that end, Major Yoni from
330 Breaking the Silence, p. 18. 331 Ibid, pp. 53, 71, 9, 8, 67. 332 “Backyard proceedings“, p. 73: “these are all suicide terrorists, and we look after their rights and translate for
them.” When asked by a MachsomWatch member whether this applied to them “all,” he
replied: “Most of them. They are suicide bombers, terrorists who blow themselves up.
They were caught en route to committing suicide attacks, and confessed it.” 333 Concluding Observations, Israel, 2002, para. 33.
63
the Kfir Brigade has stated that “the parents prevented their children from taking part in the
weekly demonstration held immediately after the arrest for fear the children would be arrested
and they would have to pay a high bond”, considering this a positive deterrent.334
5. Collective Punishment? Some Conclusions
Of course barring examination of each individual case it cannot be stated unequivocally that
innocent minors have frequently been convicted for stone throwing. It is possible that each
convicted minor was in fact guilty of the offence for which he was punished. Nevertheless
considering the legal framework governing this process it is equally possible if not likely that
many of them were not. Once arrested by an Israeli soldier, a Palestinian minor can do little to
defend himself against accusations of stone throwing and little is done to ensure that he is
worthy of the accusation. Barring access to legal assistance and separated from his family the
minor is especially vulnerable when interrogated by officers who are hardly restricted in
employing coercive measures to compel the child to confess.
Once charged, minors are tried by military courts which hold unlimited jurisdiction over the
inhabitants of the West Bank and are restrained only by vague notions of due process. Indeed,
a former judge of the Palestinian Military Courts described them as kangaroo courts.335 A
description the author finds apt. They are courts are thus there solely to process these children
through the system by some “semblance of due process”. It gives this systematic treatment a
veil of legitimacy but is in fact a farce.
It would seem that the whole system works against Palestinian youth. They have few if any
procedural rights and are treated badly throughout the process. The consequences of this
treatment are severe: children returning home after imprisonment find it hard to readjust, family
life becomes difficult and they have missed out on their education.336 When examining the legal
framework governing the treatment of minors in the West Bank, it becomes obvious that the
334 “No Minor Matter“, p. 28. 335 What Rules about What Laws? Paper produced and presented by Smita Shah , Barrister at Garden Court
Chambers in response to The Law In These Parts, a film by Ra'anan
Alexandrowicz, 15th June 2013, para. 16, referring to a statement made by Judge Jonathan Livny in response to
the making of the film. 336 Graciela Carmon, M.D., Psychiatric Expert Opinion, “Coerced False Confessions: The Case of Palestinian
Children“, Psychiatric Expert Opinion, May 2011.
64
guilt or innocence of a Palestinian youngster does not matter much, after all, the burden of proof
is reversed! The notion arises that these children are not being punished for throwing stones,
they are being punished for being boys around the same age as those throwing stones – and for
being Palestinian.
65
Annex: A map of the West Bank and Areas of Israeli Control
66
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